Cakes and Conscience

300px-supreme_court_front_dusk*This post originally appeared on the Land Center blog at https://thelandcenter.org/cakes-and-conscience/.

The Supreme Court heard oral arguments on December 5 in the highest profile case of this term. Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission is an important First Amendment case with significant implications for both freedom of speech and freedom of religion.

Jack Phillips is the owner of Masterpiece Cakeshop, a bakery in the Denver area. In 2012 Phillips was asked to bake a cake for Charlie Craig and David Mullins to celebrate their same-sex wedding ceremony. Phillips refused to bake the cake, and he was subsequently found in violation of Colorado’s anti-discrimination statute. Amy Howe reports, “The Colorado agencies responsible for enforcing the state’s anti-discrimination laws ruled that Phillips’ refusal to provide the custom cake violated those laws and that he had ‘no free speech right’ to turn down Craig and Mullins’ request. They told Phillips that, if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings.”[1]

Based on his convictions as a Christian, Phillips believes that only a man and a woman can enter into marriage. Therefore, he refuses to design wedding cakes for same-sex ceremonies. Phillips also refuses to design cakes to celebrate Halloween, divorce, or any message he considers to be lewd.

What is at stake in this case? There are a few points of particular interest to free speech and conscience protections involved in this case.

First, can the government compel speech? When we think of free speech, we generally think about the prohibition against government restricting speech. In this case, Jack Phillips wants to restrict his own artistic expression, which he argues is a form of speech, but the state of Colorado is attempting to compel him to make artistic expression that violates his conscience. Compulsion of speech is a direct violation of the First Amendment. The question is whether artistic expression through custom-designed wedding cakes is protected speech.

Second, does religious freedom extend beyond the walls of a place of worship? Phillips argues that he has the right to express his religious convictions through the bakery that he owns. He closes the store on Sundays, and he refuses to bake items celebrating various activities that violate his religious convictions. There has been a trend in recent years to see religious freedom only in the context of formal worship; however, religious freedom has not always been interpreted in such a way. Phillips claims that his religious freedom extends beyond the church and into the public square where he operates his business. The decision in this case has the potential to set a significant precedent for how freedom of religion and freedom of conscience will be applied for generations.

Third, does protection against “dignitary harm” supersede other constitutional rights? In his amicus brief for this case, Sherif Girgis defines dignitary harm as “the harm of being told (even by polite refusals) that decisions central to your identity are wrong.”[2] Andrew Walker notes, “The rise of ‘dignitary harm’ arguments aims to achieve desired legal outcomes on the basis of a perceived slight or personal offense.”[3] In essence, dignitary harm arguments are built on the idea that a person has the right not to be offended. If one is offended he can then sue the person who offended him. The responsibility is then upon the prospective offender not to offend even though there is no way for him to know for certain whether or not what he might do or say could offend someone else. Recent cases, especially related to same-sex marriage, have raised the profile of dignitary harm. The most substantial problem with this line of argumentation is that the opinions of the majority tend to be protected and the minority is most likely to commit dignitary harm. In contrast, most of the rights protected in the First Amendment are designed to protect the minority opinion from discrimination, not the reverse. The Court would be right to see Phillips as the one whose opinions and decisions should be protected.

What can we expect as the outcome of this case? It is difficult to say. Numerous reports suggest that the majority of justices are leaning toward support of Jack Phillips, but Howe warns us that “making predictions based on oral arguments is always dangerous.” In the coming months we should hear a decision from the Court, and it will likely prove to be the most significant religious liberty decision in generations.

[1] Amy Howe, “Argument analysis: Conservative majority leaning toward ruling for Colorado baker (UPDATED),” SCOTUSblog, December 5, 2017.

[2] Sherif Girgis, “Brief of Amicus Curiae Sherif Girgis Supporting Petitioners,” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 2.

[3] Andrew T. Walker, “Into the looking glass: Why the impact of Masterpiece Cakeshop at the Supreme Court matters,” ERLC.com, December 5, 2017.

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