On Tuesday, Dec. 5, the U.S. Supreme Court will hear oral arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. It’s a case about a Christian baker named Jack and a gay couple who sought to force him to bake their wedding cake, even though he explained that doing so would violate his conscience.
It’s a chance for the Supreme Court to renew our national commitment to one of mankind’s most basic unalienable rights.
The lawsuit stems from Colorado’s public-accommodations law. Most states have one of these statutes in place, precluding businesses that are generally open to the public from discriminating against customers based upon certain characteristics. The list of protected characteristics varies from state to state, but the most common ones are race, sex, national origin and religion. In recent years, some states (including Colorado) have added “sexual orientation” and “gender identity” to this list.
So when Jack refused to bake a wedding cake for Charlie Craig and David Mullins, the two men turned to the Colorado Civil Rights Commission, claiming that he had denied them full and equal enjoyment of his bakery’s services because of their sexual orientation. The Commission agreed, and the Colorado Court of Appeals unanimously affirmed a finding of discrimination based upon sexual orientation.
This finding failed to draw the all-important distinction between discriminating against people and refusing to promote a particular action or idea. Jack did not refuse to serve the gay couple. He does not object to serving them. He offered to serve them – cookies, a birthday cake, or any other item they liked.
What he refused to do was to assist, through his art, in celebrating actions that Scriptures teach are wrong. Such conscience-based refusal to engage in expressive activity is beyond the proper purview of laws prohibiting discrimination against people.
While this argument was rejected by the Commission and appellate court, it has been sustained in other cases. In fact, while Jack’s case was pending before the Commission, the Commission found that three secular bakeries did not unlawfully discriminate when they refused a Christian customer’s request for cakes that criticized same-sex marriage on religious grounds.
That decision was right. Because these bakeries weren’t refusing to serve Christians, they were refusing to facilitate the promotion of a message they abhor. That right is, and must be, protected by the First Amendment—not just for some, but for all.
Unfortunately, the Supreme Court is unlikely to address the issue of whether Jack’s behavior should have ever been treated as unlawful discrimination; the Court doesn’t generally take up cases just to correct an erroneous lower ruling. The specific question the Court will decide is whether this application of Colorado’s public accommodations law violates Jack’s rights under the Free Speech or Free Exercise Clause of the First Amendment.
Surely, if freedom of speech and religious exercise mean anything, they mean that the law cannot compel a person to use his artistic skill to promote what he believes is wrong, right? If the Supreme Court were to uphold the lower court’s ruling, it would effectively declaw the lions of liberty which once were the Free Speech and Free Exercise Clauses of the First Amendment.
Throughout the legal proceedings, some have focused on whether third-party observers would perceive the cake as Jack’s personal endorsement of the wedding it was designed to celebrate – whether the cake is really his “expression” in that sense. But this misses the essential point and demonstrates a fundamental misunderstanding of the nature of sincere conscience-based objections.
The issue for Jack isn’t “what people will think.” The issue for Jack is his allegiance to his Creator and his obedience of the “laws of Nature, and of Nature’s God.”
James Madison explained it best in his Memorial and Remonstrance: “It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe. …”
It is sad that in an age that trumpets “tolerance,” there are bullies who would ruin one man’s livelihood just because he seeks to quietly honor his duty to the Creator. It falls to the Supreme Court to remind such bullies that our Constitution precludes them from using government as their instrument of coercion.