Here is a video from the Federalist Society that briefly, and fairly evenhandedly, sums up the issues in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which will be argued before the Supreme Court today.
For those who are interested, here is a link to CNN's Michael Smerconish interviewing philosopher John Corvino, who argues against Masterpiece Cakeshop and in favor of the Colorado Civil Rights Commission (and the gay couple who tried to order a cake and were refused).
As I understand the viewpoint of most conservatives, the case hinges on whether or not the creation of a cake is artistic and personal expression. If it is, then the government has no right to force a baker or a cake decorator to "say" something that violates his or her religious beliefs, even if the act of speech takes the form of making a cake.
I think it is significant for this particular case (as Corvino points out) that the owner of Masterpiece Cake did not discuss any details of what the gay couple wanted. As soon as he discovered the cake would be for a gay wedding, he refused to discuss the matter further. Had the couple wanted a totally plain white sheet cake with no writing or decorations of any kind, would its preparation been an act of speech merely because it was destined for use in conjunction with a gay wedding? I think, therefore, in this particular case, Masterpiece Cake was clearly in the wrong.
As for how the Supreme Court should decide the case, it seems to me that as a general rule, bakers, florists, and other such commercial operations should not have the option of disobeying civil rights laws on the grounds of "religious freedom" and the right to artistic freedom of expression.
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ReplyDeleteAs a result of the case, Mr. Cakemaster (sorry can't remember his name) has stopped making wedding cakes for anyone. If the Court rules against him, he's still not going to make wedding cakes. What a triumph!
ReplyDeleteAs George Will wrote last week: it's a cake! it's not speech! I'm guessing that even this court will rule against Cakemaster, though the whole case looks like legal over-reach.
It sounds like Mr. Cakemaster was more interested in being a culture wars martyr than in running a business. Less work, I'm sure. But doesn't pay very well.
DeleteI understand why this is being challenged in court as discrimination, and I hope SCOTUS will rule that it is. However, if I were in the couple's shoes, I would want someone to make my cake who wanted my business and wished us well.
Katherine, I can't dispute your point about Mr. Cakemaster being a culture war martyr. I simply don't know. Where's the evidence?
DeleteBut why not then, suppose that his opposition are also culture warriors (though, since they are likely to win, martyr is not the right word).
Both are almost certainly being funded by legal advocacy groups...there's no way they would get to the SC otherwise. That could mean both are puppets of big money partisan groups.
Of all the cake shops in all the towns in all the world they had to walk into Jack Phillips's. Here are a gay couple who don't know a gay cake artist and a cake maker who has never been investigated by the Colorado Civil Rights Commission for refusing, on moral grounds, to make a cake for a couple living together without benefit of clergy. It's a match made in irony heaven.
ReplyDeleteI don't know how the Supremes will vote, but I bet I can predict how one of them will vote -- Justice Gorsuch, promised of the USCCB and excuse for voting for a child molester for the Senate.
How did we get to this place, a place where someone's religious views can trump every other consideration ... it wasn't always this way: think polygamous Mormons. And how did we get to a place where Christianity has become synonymous with being anti-gay ... there's no real scriptural support for a Christian stance against marriage equality. It's just bigotry dressed up as religion.
ReplyDeleteNot to worry, Crystal. Someone else made a cake for them.
ReplyDeleteFr. Thomas Reese wrote this in How the bishops should respond to the same-sex marriage decision a couple of years ago ...
ReplyDelete"Let's be perfectly clear. In Catholic morality, there is nothing to prohibit a Catholic judge or clerk from performing a same-sex marriage. Nor is there any moral obligation for a Catholic businessperson to refuse to provide flowers, food, space and other services to a same-sex wedding. Because of all the controversy over these issues in the media, the bishops need to be clear that these are not moral problems for Catholic government officials or Catholic businesspeople."
The Cakemaster, James Phillips, is not Catholic.
DeleteThere's nothing Christian about hating gay people so much you wouldn't make a wedding cake for them. You can dance around this theologically, but at the end of the day it's about hate.
ReplyDeleteNo, it's about individualism. Since God became a matter of choice like everything else, He is to someone whatever someone needs (note the very; I didn't say "wants" or "thinks") Him to be.
DeleteOf course a scriptural case can be made against same-sex marriage!
ReplyDeleteThere is no reason to accuse the Colorado baker of hate. It takes no deep theological insight to understand that some Christians so strongly oppose "marriage equality" that they do not want to participate even somewhat remotely in a same-sex marriage.
The issue before the court is not a theological one. The Supreme Court does not decide theological questions, so it is not possible for it to decide that religious objections to same-sex marriage are unwarranted. The issue is that when there is a religious objection to providing something such as a cake for a same-sex wedding, does that exempt the person who objects from obeying an anti-discrimination law.
But why would someone *need* to believe God is against marriage equality? I'm thinking it's that they want God to give cover for their already existing negative feelings about gay people.
ReplyDeleteCrystal, the "need" arises from the awareness that people would think they are bigots if they didn't invoke God to defend their bigotry. But there is not a serious theologian (by "serious," I mean somebody who knows what he is talking about) who would justify selective discrimination in the name of God against His sons and daughters.
DeleteDavid, what's the biblical case against same-sex marriage?
ReplyDeleteAbout the Court, just someone having a belief about what their religion teaches shouldn't be enough .... 1) they may not be accurately understanding their religion's beliefs, and 2) not all religious beliefs are created equal. If Druids still exited and believed God wanted them to burn people alive, would that be enough to make the Court start rubbing two sticks together?
"As I understand the viewpoint of most conservatives, the case hinges on whether or not the creation of a cake is artistic and personal expression. If it is, then the government has no right to force a baker or a cake decorator to "say" something that violates his or her religious beliefs, even if the act of speech takes the form of making a cake."
ReplyDeleteIf that is the basis for the arguments, it is interesting that it is based on the free-speech clause rather than one of the freedom of religion clauses of the First Amendment; it seems pretty clear that the baker declined to do business with the couple because of religious objections, not because of some infringement of his free-speech rights. But I believe the freedom-of-religion argument hasn't fared very well with the courts, so it may be that the activist lawyers are trying a different tack?
Jim, I take your point: both plantiffs and plaintee have lost control of their point, and the legal beagles are framing the issues in--well beagley language!
DeleteSee this short piece on Mirror of Justice by Mark De Girolami in which he says: "Most of us ordinary folk thought that the compelled speech argument was going to be the show. That still may turn out to be the case, since reading oral argument for clues as to the decision is not so reliable. Still, reading through the transcript today, and in particular the colloquy among JJ. Kennedy, Alito, Gorsuch, the Chief, and counsel for Colorado, it seemed to me that the Free Exercise Clause was the surprise of the day." (Mirror of Justice is an excellent source for keeping up with the thinking in conservative Catholic legal circles.)
DeleteI think conservative Catholic legal thinkers would argue that it was necessary to make the case at least partially on the basis of freedom of expression (that is, against "compelled speech") because modern courts have given short shrift to free exercise arguments.
I just watched a segment on the PBS NewsHour about the case and I think it's based on both free speech (as an artist) and freedom of religion too. They interviewed the people on both sides of the case.
ReplyDeleteIt's just discouraging to see someone say that their relationship with God would be damaged if they made a wedding cake for gay people. I don't see how anyone would believe that except people who already wanted that to be true. Most Catholics do *not* believe that, even though the church teaches that.
"It's just discouraging to see someone say that their relationship with God would be damaged if they made a wedding cake for gay people. I don't see how anyone would believe that except people who already wanted that to be true. Most Catholics do *not* believe that, even though the church teaches that."
DeleteRegarding what the church teaches on this topic: it's interesting that the Catholic bishops have filed an amicus brief with the Colorado Court of Appeals on behalf of the baker.
"American citizens should never be forced to
choose between their religious faith and their right
to participate in the public square. This fundamental
vision of our constitutional government is embodied
in the First Amendment, which guarantees that all
citizens, whether of a particular religious faith or no
faith at all, are free both to speak and to act in
accord with their conscience.
"That vision is clearly at risk when government
attempts, with increasing intensity, “to reduce
religious freedom to mere freedom of worship without
guarantees of respect for freedom of conscience.”2
In an apostolic exhortation on the proclamation of
the Gospel, Pope Francis recently insisted that “no
one can demand that religion should be relegated to
the inner sanctum of personal life, without influence
on societal and national life, without concerns for the
soundness of civil institutions, without a right to
offer an opinion on events affecting society.”3 This
“right to religious freedom,” declared the Second
Vatican Council in its Declaration on Religious
Freedom, “has its foundation in the very dignity of
the human person” and is “to be recognized in the
constitutional law whereby society is governed” as “a
civil right.”4"
http://www.usccb.org/about/general-counsel/amicus-briefs/upload/16-111-tsac-USCCB.pdf
crystal,
ReplyDeleteYou said, "David, what's the biblical case against same-sex marriage?"
You may remember that in Genesis God said, "It is not good for the man to be alone. I will make a helper suited to him." Then we have the following:
The LORD God then built the rib that he had taken from the man into a woman. When he brought her to the man, the man said:
“This one, at last, is bone of my bones
and flesh of my flesh;
This one shall be called ‘woman,’
for out of man this one has been taken.”
That is why a man leaves his father and mother and clings to his wife, and the two of them become one body.
It seems to me that is an unmistakable statement that the woman was made to be the "helper suited to the man." And we have this reiterated by Jesus in Matthew 19:4-6:
He said in reply, “Have you not read that from the beginning the Creator ‘made them male and female’ and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’?
So they are no longer two, but one flesh. Therefore, what God has joined together, no human being must separate.”
Then, back to the Old Testament, we have such statements as Leviticus 20:13: "If a man lies with a male as with a woman, they have committed an abomination; the two of them shall be put to death; their bloodguilt is upon them."
Then again back to the New Testament we have Paul in Romans 1:26-27:
Therefore, God handed them over to degrading passions. Their females exchanged natural relations for unnatural, and the males likewise gave up natural relations with females and burned with lust for one another. Males did shameful things with males and thus received in their own persons the due penalty for their perversity.
If there is even the smallest hint in either the Old Testament or the New Testament that marriage could be between two people of the same gender, I certainly have never stumbled across it.
I'm not saying there aren't arguments against the above—I have spent a lot of time in online forums making such arguments—but it boggles the mind to claim there are no biblical (or theological) arguments against same-sex marriage.
Like you said, you know all the arguments against these passages. Fr. James Alison writes about what Romans 1 says. Susan Neiman writes about what Sodom and Gomorrah is really about. Bishop Gene Robinson writes about what the bible says about this stuff - What Does the Bible Really Say About Homosexuality? and Homosexuality in Leviticus
ReplyDeleteI think the best that can be said about the bible passages is that the writers didn't like the idea of straight men having sex with other men, or straight women having sex with other women. And that they thought marriage was a good thing. But none of the passages addresses love and sex and marriage between men/women who are gay.
It sounds very much to me as if you know for a fact that your sources interpret the Bible correctly, and since you know what the Bible says, others who interpret the Bible differently from you are not entitled to constitutional protections. That's not the way the free exercise clause works. If someone (such as Jack Phillips, the baker) asserts a free exercise claim based on objection to same-sex marriage, it is not the job of the Supreme Court to decide whether or not the Bible actually does have anything significant to say about homosexuality or same-sex marriage. The free exercise clause doesn't guarantee religious liberty only to people who have religious beliefs that can somehow be objectively verified.
DeleteI am wondering, by the way, if you actually believe the Bible is the inspired word of God and is authoritative if interpreted correctly. I suspect not, and even if so, I suspect you don't recognize the authority of the Catholic Church to be the ultimate arbiter of what the Bible really means.
There is nothing in the Bible about straight people versus gay people. I find it difficult to interpret Leviticus as saying a straight man who lays with another straight man as with a woman must be executed, but two gay men who do the same thing are perfectly fine. Our concepts of straight and gay are quite modern and would have been utterly foreign to biblical authors. The best that can be said is that the phenomenon of "being gay" is news, and that has to be taken into account in interpreting material that was written thousands of years before the phenomenon occurred. But I really don't think you could have convinced the authors of Leviticus that it was wrong for straight men to have sex with each other but acceptable for gay men to have sex with each other.
But if you don't accept the Bible as the inspired word of God containing authoritative instructions for sexual morality, I don't understand the need to explain away the parts you don't like.
You asked me about this whole thing before ... do I believe church teaching, do I believe the bible is inspired, etc. You already know the answer.
DeleteI believe a lot of what is in the gospels, even the miracles, which a lot of Catholics don't. I believe in Jesus/God. I even worry about hell. But I think the bible was written by people who can make mistakes and I think the church is run by people who can make mistakes, so, no, I don't just believe everything.
There are plenty of Christian denominations - Presbyterians, Lutherans, Methodists, Episcopals, UCC, - that think marriage equality and LGBT relationships are ok, so the baker's belief is not representative of Christianity, just of his own little corner of it. People what he believes because they want to, just like I believe what I do because it's what I want to be true. This says more about believers than it does about God.
It's easier to see why using people's avowed religious beliefs as justification for discriminating against others when we look at past examples from this LA Times article ...
ReplyDelete"In the 1960s, Piggie Park, a small chain of barbecue restaurants in South Carolina, said that its owner’s freedom of religion would be violated if it were held responsible for disregarding the Civil Rights Act when it refused to serve black patrons.
In 1983, Goldsboro Christian Schools of Goldsboro, N.C., argued it had a religious right to refuse black students. In the same case, Bob Jones University of Greenville, S.C., argued it had a right to deny admission to students who engaged in, or advocated for, interracial dating.
As recently as 1990, Roanoke Valley Christian Schools in Virginia argued that it had a right to pay women less because their faith taught that men should be heads of households."
Thanks, David, for the video, which clearly lays out the arguments. Always appreciate your analysis that looks closely at evidence on all sides.
ReplyDeleteHow baking a cake is "participating" in a same-sex marriage eludes me. A baker is not performing the wedding, is not a guest at the wedding, and he is not being asked to be a well-wisher.
If this Cake Man wins his lawsuit, couldn't a restaurant cook, grocer, car dealer, drug store, doctor, a private utility company, etc. refuse to serve gay couples by arguing they are being forced to "participate" in the "same-sex lifestye"?
What if a greeting card company had a stipulation that you couldn't buy a wedding card if it was going to a gay couple?
Seems to be a lot of vexed questions here.
Here's another one: http://statenews.com/article/2017/09/country-mill-farms-returns-to-the-east-lansing-farmers-market
Jean,
ReplyDeleteI took a very quick look at the brief filed with the Supreme Court by the petitioners (Masterpiece Cakeshop and their legal team), and they lay heavy emphasis on the fact that each cake Jack Phillips (Cake Man) produces is a unique creation. The happy couples discuss their ideas for the cake with Phillips, and he creates a unique cake in every instance based on what he has discussed with the customers. It is not (as I understand it) that you can't buy a generic wedding cake from Masterpiece Cakeshop. It's that they don't sell generic wedding cakes. Each wedding cake is a custom creation by Jack Phillips, who considers his creations to be works of art. The brief also argues that a wedding cake is an important part of the overall wedding experience in traditional weddings.
Jack Phillips has no problem creating other kinds of cakes (e.g., birthday cakes) for gay customers, and Masterpiece Cakeshop in no way restricts what gay customers may buy off the shelves. So the objection is only to making custom-created cakes for same-sex weddings (and commitment ceremonies). Consequently, the argument is that Jack Phillips doesn't discriminate against gay people. He just doesn't want to be involved—for religious reasons—with a gay wedding.
So it seems to me most of the slippery slope arguments you bring up don't follow from this case. As I understand the position of Masterpiece Cakeshop, if they created generic wedding cakes and sold them off the shelf (which apparently they don't), they would not refused to sell them to gay couples. But that is not what Jack Phillips does. He believes himself to be an artist who creates unique cakes for specific occasions.
Justice Ginsberg pointed out that if the baker won this argument, then what about the florist or the jeweler or the photographer or the make-up artists, etc. who may all consider what they create for a particular wedding to be "art". She said "I don't see a line that can be drawn here."
ReplyDeleteAdam Schiff tweeted - This isn’t about cake—it’s about discrimination. Discrimination on the basis of sexual orientation is every bit as wrong as discrimination based on race or ethnicity or religion. Equality under the law means just that.
I agree.
Hmmm. OK, just thinking out loud.
ReplyDeleteRaber does custom carpentry and remodeling. He consults with customers. They tell him their ideas and then he creates the cabinets or tables or what not. He considers himself a craftsman/artist.
What if he were asked to build an arbor for a gay wedding. What if part of the design included the words "Congratulations, Ed and Steve"?
He said, no problem.
What if a group asked him to build a conference table if someone asked him to incorporate swastikas on it or an image of the Confederate flag?
He said he wouldn't do it.
Should he have the right to refuse in either case? Are the cases equivalent in the eyes of the law?
(I am not comparing gay men with Nazis, of course, just comparing two examples of situations in which a craftsperson is being asked to create something that will be used in a morally objectionable way.)
Yeah, I was thinking along the same lines - there are groups I wouldn't want anything to do with too.
ReplyDeleteMaybe that's what the law is all about. We agree to make concessions so that everyone is treated equally, even people we don't like, because once we go down the road of exempting different people, especially based on personal taste, there's just no end to it and no way to make it fair.
If the law said I had to make swastikas for some white nationalist, I'd pay the fine instead. If they ganged up on me with swastika orders to make me go broke, I'd exit the business.
ReplyDeleteWe can all (I hope) think of things we wouldn't do for money, but it is important to remember that by Colorado law, it is illegal to discriminate on the basis of sexual orientation. The various analogies presented above may be helpful for understanding the situation of someone being prosecuted under a nondiscriminations statue with which they disagree, but the Colorado Public Accommodations Law does not make it illegal to discriminate on the basis of Nazi party membership! The case against Masterpiece Cakeshop could not have been brought if the state of Colorado had not past anti-discrimination laws that included sexual orientation. Here is a brief excerpt from Wikipedia on the pertinent Colorado laws:
ReplyDelete******************************
In Colorado, it has been illegal to discriminate on the basis of sexual orientation and gender identity or expression in employment, housing, public accommodations, education, and credit since the category "sexual orientation" was added to the state's Public Accommodations Law in 2008. The bill was controversial and following its passage by the legislature opponents waged a media campaign that failed to persuade Governor Bill Ritter to withhold his signature.
On November 3, 1992, Colorado voters approved Initiative 2, an initiated constitutional amendment which added language to the state constitution that prohibited the state and all of its subdivisions from allowing "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" to provide the basis for any "claim any minority status, quota preferences, protected status or claim of discrimination." In 1994, the Colorado Supreme Court found the amendment unconstitutional. In 1996, the U.S. Supreme Court held in Romer v. Evans that the amendment, because it "allows discrimination against homosexuals and prevents the state from protecting them", was "motivated by animus towards homosexuals" and violated their rights under the equal protection clause of the Fourteenth Amendment.
******************************
David, thanks for keeping our thinking directed in the right grooves on this.
ReplyDeleteSo the law does allow discrimination based on sexual preference.
Political affiliation is not a protected category.