Masterpiece Cakeshop waiting game: Are the bakers of all 'offensive' cakes created equal?

It probably comes as no surprise that this week's "Crossroads" podcast (click here to tune that in) focused on key ingredients in the Masterpiece Cakeshop debates at the U.S. Supreme Court.

This is one case in which it really helps to spend time reading the transcript (click here for the .pdf). I loved Julia Duin's description of these court arguments, earlier this week, as, "a knife fight between 10 participants (nine justices and the hapless attorney before them)." Host Todd Wilken added that, in this setting, the action took place in a kind of polite, legalistic slow motion.

Hint: It's interesting to scan the document looking for key words and phrases. For example, try "tolerance." And if you search for "doctrine" you will find all kinds of references -- but in this case the word refers to doctrines established by the high court. That's rather chilling.

My pre-game post focused on several issues that I thought would be crucial in media coverage. For example, tt appears the justices accepted that baker Jack Phillips was, in fact, being asked to create one of his unique, artistically designed cakes, with content linked to a same-sex wedding -- as opposed to an all-purpose wedding cake (which he offered the couple).

What about the cases in which the Colorado Civil Rights Commission ruled that liberal bakers did not have to produce products that violated their beliefs? I truly expected journalists to include some information about the court's discussions of that. Many did not.

So what happened on that issue? First, before we look at one interesting chunk of the transcript, please allow me to flash back to a parable that I created in 2015 to illustrate this question. Here it is again:

... Let's say that there is a businessman ... who runs a catering company. He is an openly gay Episcopalian and, at the heart of his faith (and the faith articulated by his church) is a sincere belief that homosexuality is a gift of God and a natural part of God's good creation. This business owner has long served a wide variety of clients, including a nearby Pentecostal church that is predominantly African-American.
Then, one day, the leaders of this church ask him to cater a major event -- the upcoming regional conference of the Parents and Friends of Ex-Gays & Gays. He declines, saying this would violate everything he stands for as a liberal Christian. He notes that they have dozens of other catering options in their city and, while he has willingly served them in the past, it is his sincere belief that it would be wrong to do so in this specific case.
Whose religious rights are being violated?

The crucial question for journalists to understand: Has this businessman consistently demonstrated an unwillingness to do catering work for African-Americans, or Pentecostals, as a class? The answer is "no."

In the Masterpiece Cakeshop case, it's clear that Phillips was more than willing to do business with this gay couple, and the LGBTQ community in general, but he did not want to contribute his artistic talents to a specific event that violated his traditional Christian beliefs, and those of his church.

Both our hypothetical gay caterer and Phillips are asking for narrowly defined exemptions linked, not to broad discrimination, but to very specific situations that violate their religious beliefs and those of their churches.

This brings us to the closing remarks of Kristen Waggoner, of Alliance Defending Freedom, referring to the actions of Colorado officials:

MS. WAGGONER: ... (T)he bias of the Commission is also evidenced in the unequal treatment of the cake designers, the three other cake designers who were on the squarely opposite sides of this issue.
If -- if the Court looks at the analysis that was provided by the Colorado court of appeals, line by line they take the opposite approach to Mr. Phillips that they do to those who are unwilling to criticize same-sex marriage --
JUSTICE GINSBURG: And they say they wouldn't -- they would say no to anyone who came with that request?
MS. WAGGONER: No. The Colorado court of appeals said that they could have an offensiveness policy, and they said that those three cake designers were expressing their own message if they had to design that cake.
In Mr. Phillips's case, they said it wasn't his message. It's simply compliance with the law.
In the other case, they said that the cake designers, because they served Christian customers in other contexts, that that was evidence it was a distinction based on the message, but in Mr. Phillips's case, they ruled the opposite way. 

Thus, officials in Colorado were saying that liberal bakers should have an "offensiveness" trump card, but not Phillips. Read the transcript and you'll see that the justices, over and over, tried to figure out why this argument worked for some believers and not others.

By the way, let me repeat a question that I have asked in the past:

For journalists, this should raise another question: Has any group of religious believers -- at any time or place -- attempted to argue that the established, ancient, doctrines taught by their religious tradition prevent them from doing business with gay people, as a class of customers? Has a court heard such a case?

Another crucial question: Did customers Charlie Craig and Dave Mullins have other local options, in terms of bakers? To use the church-state term, did they have other "accommodation" options, if declined by Phillips? In other words, did his request for a conscientious object threaten their wedding?

Here is Justice Anthony Kennedy, grilling Frederick Yarger, representing the Commission:

JUSTICE KENNEDY: Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.
MR. YARGER: And, Your Honor, I -­
JUSTICE KENNEDY: And -- because accommodation is, quite possible, we assume there were other shops that -- other good bakery shops that were available.

So why not turn to another baker?

Why sue Phillips and strive to damage his business? Were there other options for the creation of this one cake? Here is a fascinating summary of some of the key facts on that issue, written by a highly symbolic journalistic voice on this topic:

... I think it was a prudential mistake to sue the baker. Live and let live would have been a far better response. The baker’s religious convictions are not trivial or obviously in bad faith, which means to say he is not just suddenly citing them solely when it comes to catering to gays. His fundamentalism makes him refuse to make even Halloween cakes, for Pete’s sake. More to the point, he has said he would provide any form of custom-designed cakes for gay couples -- a birthday cake, for example -- except for one designed for a specific celebration that he has religious objections to. And those religious convictions cannot be dismissed as arbitrary (even if you find them absurd). Opposition to same-sex marriage has been an uncontested pillar of every major world religion for aeons.
And so, if there are alternative solutions, like finding another baker, why force the point? Why take up arms to coerce someone when you can easily let him be -- and still celebrate your wedding? That is particularly the case when much of the argument for marriage equality was that it would not force anyone outside that marriage to approve or disapprove of it.

The journalist who wrote these words? That would be gay-rights trailblazer Andrew Sullivan.

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