Stephen
Kershnar
Masterpiece Cakeshop: Freedom vs. Anti-Discrimination
Laws
Dunkirk-Fredonia Observer
October
15, 2017
The Supreme Court will soon decide a
case, Masterpiece Cakeshop v. Colorado
Civil Rights Commission, that addresses whether the state can force a baker
to make custom cakes for gay marriages. The case shows the degree to which the government
(here, Colorado) will trample on liberty in pursuit of cultural reeducation.
In the case, a gay couple (Charlie
Craig and David Mullin) approached a baker, Jack Phillips, and asked him to
design and create a wedding cake to celebrate their wedding. Phillips declined
because of his religious beliefs, but said he “would be happy to make and sell
them any other baked goods.” Craig and Mullin easily found a rainbow cake from
another bakery and then filed a discrimination complaint. Phillips believes that
decorating cake is an art and that he honors God through his artistic creation.
Phillips objects to the state compelling him use his skill to design and create
art that contradicts his traditional Christian beliefs. The state concedes that
Phillips’ work involves considerable skill and artistry.
The Supreme Court should find this
case easy. First, the state is requiring Phillips, in order to be a commercial
baker, to affirm ideas that he rejects. This violates black letter law. In West Virginia State Board of Education v.
Barnette (1943), Justice Robert Jackson famously said, “If there is any
fixed star in our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics, nationalism,
religious, or other matters of opinion or force citizens to confess by work or act their faith therein.” This
is true regardless of whether Phillips is required to provide a specific
message or a work of art. It is this, Phillips argues, that protects Jackson
Pollock’s painting, Arnold Schoenberg’s music, and Lewis Carroll’s writing.
Law
professors Larry Alexander, Randy Barnett, and others argue that this principle
prohibits the state from being able to make a gay florist provide flowers to an
event opposing gay marriage or a black baker make a “Black Lives Don’t Matter”
cake for the KKK. Even Colorado found that when three bakers refused to create
cakes disapproving of gay marriage, they didn’t violate Colorado’s
anti-discrimination law.
Even if Colorado were not coercing
Phillips into publicly endorsing gay marriage, the state’s requiring Phillips
to make such a cake would be unconstitutional anyway because it favors one
viewpoint (same-sex marriage is good and right) over another other views
(same-sex marriage is bad and wrong).
More important than the legal issue
is the moral one. Colorado is trampling on Phillips’ moral right to expression
by forcing him to endorse an idea he rejects. People’s moral rights rest on
their rights to body and property. These rights justify other rights. Among the
rights they justify are rights covering association, expression, religion, and sex.
These rights allow people to pursue their own projects so long as they do so in
a way that doesn’t highjack others’ bodies or property. In this case, the state
is taking Phillips’ labor and property and using them to promote a message he
rejects. The fact that he rejects it because of his religion just makes it
worse.
Colorado might provide a few
arguments for its action. First, it might argue that Phillips is harming the
gay couple because his refusal to make a cake for them offends them or insults
their dignity. The problem is that people have neither a moral nor legal right
not to be offended. If Phillips had a bumper sticker that that said,
“Christianity disapproves of homosexuality. See 1
Corinthians 6:9-10 and Romans 1:24-32,” this might offend the gay couple,
but it wouldn’t infringe their rights. It is unlikely there is a right to have
one’s dignity respected because it is mysterious what this would amount to
other than a claim to have one’s rights respected.
Second, Colorado might argue that
Phillips’ cake-making is conduct and not speech and, thus, not part of his
moral right to expression. However, it is hard to see how an artist’s work is
not expression. The work of Pollack, Schoenberg, and Carroll is expression even
if it lacks a particular message. This is true, even if these artists sell
their work to the public.
In
addition, Colorado required Phillips to make a particularized message as it ordered
him to create the same custom-made cakes for homosexual couples that he would
make for heterosexual couples. Thus, he might be required to produce a
beautiful-and-unique cake that says, “God blesses this marriage.” The state
concedes that he may refrain from making a “God condemns this marriage” cake.
Clearly, the state is mandating a particular message. One wonders whether it
would require a Christian painter to make a “God digs lesbianism” oil painting.
Third, Colorado might argue that if the
moral right to expression exempts businesses from anti-discrimination law, this
would invalidate much, if not all, anti-discrimination law. There is a sharp
conflict between the rights people have to their body and property and state
laws requiring them not to discriminate on the basis of race, sex, religion,
and so on. Just as women have a right to discriminate in terms of who they let
in their body and homeowners have a right to discriminate in terms of who they
let into their house, business owners should have a right to discriminate in
terms of who they let in their business. This is true whether the people who
want to be let in are customers or employees.
Even
if one thought that anti-discrimination laws are just, most businesses are not
directly involved in expression, whether specific ideas or artistic visions. As
a result, the moral and legal rights to expression likely do not apply to them.
No comments:
Post a Comment