June 22, 2018

Piece of Cake

Dr. Malcolm Cross

The big news last week was the United States Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission wherein the Court ruled, by a 7-2 vote, that the Commission was wrong to punish cake designer and baker Jack Phillips for refusing to design or sell a wedding cake to a gay couple because, for religious reasons, he opposes gay marriage, and did  not want to make a cake with a message supporting what he opposed.  But to celebrate the outcome of this case as a triumph for freedom of speech or freedom of religion is premature at best, and not necessarily warranted by the decision itself.

Associate Justice Anthony Kennedy, who wrote the Court’s official opinion, based his decision not on the issues of freedom of speech and/or religion, but on the apparent hostility of the Commission to Phillips’s particular brand of Christianity.  Kennedy noted that the Commission, in at least three previous cases, had supported other bakers’ refusals to design cakes with homophobic themes—messages which the bakers did not wish to create.  One such case, as described by the New York Times, is particularly noteworthy:

“William Jack attempted to buy a cake at Azucar Bakery in Denver, Colo. Specifically, he requested a Bible-shaped cake decorated with an image of two grooms covered by a red X, plus the words ‘God hates sin. Psalm 45:7’ and ‘Homosexuality is a detestable sin. Leviticus 18:22.’ The owner, Marjorie Silva, refused to create such an image or message, which conflicts with her moral beliefs. She did, however, offer to sell him a Bible-shaped cake and provide an icing bag so that he could decorate it as he saw fit. The customer filed a complaint alleging religious discrimination, which is also prohibited by Colorado’s public accommodations law. But the commission disagreed, arguing that Silva’s refusal was based not on the customer’s religion, but on the cake’s particular message.”

Yet the faith-based arguments of Phillips—who refuses to make cakes celebrating Halloween and bachelors’ parties as well, but is willing to sell baked goods without particular messages to anyone, including gays, who want to buy them—elicited intense animosity and hostility from at least one Colorado Commissioner, Diann Rice, who said:  “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me, it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

This prompted Justice Kennedy to write:  To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere.”

And Commissioner Rice’s statement, coupled with the fact that nobody else on the Colorado Civil Rights Commission challenged or disputed it, led Justice Kennedy to rule against the Commission on the grounds that it showed impermissible and unconstitutional hostility to Phillips, but not necessarily because it had violated his rights.

Which is really too bad.  Left open is the question of how the Supreme Court might rule in a case in which a state or federal agency or court reaches similar to that of the Colorado Civil Rights Commission but without the overt and obvious hostility the Commission harbors to Phillips’s brand of Christianity.  The only thing really certainty—other than that Phillips won his own particular case–is that there will no doubt be more cases coming before the Court involving disputes between gays and those who choose, for religious reasons, not to do business with them.  Nothing, really, has been settled.

We’d be much better off if every adult was free to live in accordance with whatever lifestyle he chose, as long as he harmed nobody, and abstained from trying to impose his values on anyone else.  Just live and let live.  But I’m not holding my breath waiting for that to happen.


Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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