There is absolutely no question the U.S. Supreme Court should side with a Colorado baker who refused, because of his religious convictions, to bake a custom cake for a gay couple's wedding. The First Amendment's future hangs in the balance.
A central question in court filings is "Whether applying Colorado's public- accommodation law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment."
The case, Masterpiece Cake Shop v. Colorado Civil Rights Commission, was born of a 2012 discrimination complaint to the Colorado Civil Rights Division.
The Christian baker, Jack Phillips, contends his custom cakes are art forms and he was exercising his constitutional right not to bake one celebrating, endorsing, a belief he disagrees with when he politely refused to bake a custom wedding cake for a gay couple, David Mullins and Charlie Craig.
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Mind you, at the time, same-sex marriage was illegal in Colorado and there were dozens of nearby bakeries. Nevertheless, the couple decided to compel Phillips to comply with their demands.
[Wedding cakes can be stunning creations, but do they qualify as art?]
It should be noted Colorado three times has "declined to force pro-gay bakers to provide a Christian patron with a cake they could not in conscience create given their own convictions on sexuality and marriage," Robert P. George and Sherif Girgis point out in a New York Times opinion piece, "A baker's First Amendment rights."
Phillips' brief to the Supreme Court says because weddings and marriage have such religious significance for him, "he would consider it sacrilegious to express through his art an idea about marriage that conflicts with his religious beliefs."
Phillips, who has run his bakery since 1993, says he sells his ready-made confections to anybody. He does not discriminate against homosexuals, but draws the line at custom cakes celebrating things or events at odds with his religious beliefs. For instance, he refuses custom cakes for Halloween, or adult-themed parties, or to celebrate divorce. Ditto for vulgarities, profanity or anti-American messages, or cakes that disparage the lesbian, gay, bisexual and transgender community.
Baking is an artistic expression, Phillips says, and compelling him to bake for a same-sex marriage is forced speech violating free speech and religious-freedom protections.
Losing his case before the Colorado Civil Rights Division, he appealed to the Colorado Civil Rights Commission and lost again.
In its order, the commission required he: "(1) design wedding cakes that celebrate same-sex marriages if he creates cakes that celebrate opposite-sex marriages, (2) re-educate his staff (which includes his family members) on (Colorado Anti-Discrimination Act) compliance, and (3) submit quarterly compliance reports for two years describing all orders that he declines and the reasons for the denial."
If that is not unconstitutional, what is? He appealed to the Colorado Court of Appeals and lost yet again. Now the case is being weighed by the nation's high court. Much hangs on its outcome.
In the past, justices have protected our right not to be compelled to espouse in any fashion something we reject. In one notable case, 1943's West Virginia v. Barnette, they barred state denial of Jehovah's Witnesses' right to attend public schools unless they saluted the flag. "Compulsory unification of opinion," the Court said then, is antithetical to the First Amendment.
Today's court must decide whether the Centennial State can deny Phillips the right to craft and sell any custom wedding cakes unless he bakes them for gay weddings, as well.
[Supreme Court seems divided in case of baker who refused to create wedding cake for gay couple]
If artists of any stripe, if any citizen, for that matter, can be compelled by government to endorse ideas they find religiously reprehensible, what good is the First Amendment? We have hard-won rights in this country. One of them is freedom of expression. We are allowed to have our own beliefs; we do not have to endorse our neighbor's. We do not even have to like his dog. We certainly should not have to bake cakes that offend our sincerely held beliefs.
A problem here is the Supreme Court. It is a lousy place to resolve a divisive ruckus over social rights. Roe v. Wade stands as an example of Supreme Court overreach on something best left to the states and time; a judicial answer to a political question — leaving the question largely unresolved.
What this court will do is unpredictable. When the dust settles, one can only hope it finds "compulsory unification of opinion" as onerous now as it did 43 years ago; that the First Amendment survives this latest onslaught; that Jack Phillips can create custom cakes as he sees fit.
If not, the tapestry that is this great nation will unravel just a little more.
Paul Jenkins is editor of the AnchorageDailyPlanet.com, a division of Porcaro Communications.
The views expressed here are the writer's and are not necessarily endorsed by the Anchorage Daily News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary@adn.com. Send submissions shorter than 200 words to letters@adn.com or click here to submit via any web browser.