Personally, I would bake the cake and dance at the wedding, too.
But I don't see that the state has the right to force Colorado baker Jack Phillips to express something he does not believe by making him design wedding cakes for same-sex couples.
To force Phillips to do that anyway is to compel speech, and the First Amendment we all love until we don't prohibits that, as the Supreme Court seems likely to rule in the Masterpiece Cakeshop case it heard.
Justice Samuel Alito asked lawyers whether a baker has to sell the same cake that proclaims Nov. 9 the greatest day in history to someone celebrating his anniversary on that day as to someone commemorating Kristallnacht. Justice Neil Gorsuch wondered whether a baker who sells a cake with a Red Cross on it to someone celebrating a great humanitarian organization has to sell the same cake to someone celebrating the KKK.
No and no, right? And as a lawyer for Phillips put it, "This law protects the lesbian graphic designer who doesn't want to design for the Westboro Baptist as much as it protects Mr. Phillips."
The popular criticism of this unpopular view is that turning down a custom cake order from a same-sex couple is no different from turning African Americans away from the lunch counter under Jim Crow. But Phillips does not and cannot turn anyone away. He does sell brownies and anything else to gay customers.
And the case does hinge in part on whether a baker is enough of an artist to be entitled to creative expression. Or is he instead a merchant, who like any hotelier or restaurant owner has to rent a room or prepare a table for all comers? Phillips, who also draws and paints, creates his cakes based on his sketches and then hand paints them. He definitely sees himself as a designer whose raw materials happen to be flour and sugar.
His critics all argue that if he prevailed, then anyone claiming that their racist beliefs were Bible-based could refuse to serve black or brown customers. But would any court in the country uphold such a thing? "Race is different," a lawyer for Phillips argued. For starters, because in such cases, "we know the objection would be based on who the person is, rather than what the message is."
Both sides argue that minority rights are at stake.
But the perceived swing vote, Justice Anthony Kennedy, told those arguing for Colorado that as he saw it, "the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs." And as he also said, "tolerance is most meaningful when it's mutual."
Editorial on 12/13/2017