On December 5th, 2017 the Supreme Court
considered who is right in a case between a Colorado baker named Jack Phillips
who refused to create a cake for a same-sex wedding and the same-sex couple
that was turned down by Phillips.
The case began all the way back in 2012 when Phillips claimed that baking a
cake for the wedding of David Mullins and Charlie Craig would be in violation
of his religious freedom. Resulting in Mullins and Craig filing discrimination
charges and winning before a civil rights commission as well as in the courts.
There is a decision on the case expected to be
presented in June. On December 5th, however, several justices intended to
challenge the thinking of lawyers on either side. Appointee of President Trump Justice Neil Gorsuch speculated
that by favoring the side of Mr. Phillips, we could be opening the door for
more discrimination. At the other end, U.S. Solicitor General Noel Francisco,
advocated the First Amendment. To Francisco, the constitutional amendment
should guarantee businesses the ability to reject any customer wanting their
product and/or services for “an expressive event like a marriage celebration to
which they’re deeply opposed.” I think that both sides bring up valid points.
But where do we draw the line when the expression of religion through our first
amendment right is seen as a discrimination against the lives of others?
Phillips has been pushing that both his freedom
of expression and freedom of religion, under the First Amendment, override the
Colorado anti-discrimination law. There is not an explicit federal law that
protects gay couples from discrimination, but hundreds of local districts and
more than twenty states have outlawed discrimination based on sexual
orientation. Although, businesses such as florists, bakers, and photographers
have cited religious and free-speech objections in refusing to serve gay and
lesbian customers, claims that have generally not fared well in the nation's
courts.
Although I do not agree with Mr. Phillips’
decision to refuse the same-sex couple, I am asking the question of whether
Phillips' cake is a product to sell or his own creative venture. If his cake
was a product on the shelf, with its creativity and expression completed, Jack
Phillips would be in the wrong for denying a same-sex couple a product. But as
Phillips' lawyer puts it: "Jack is an artist, and his cakes proclaim that a
marriage has occurred and should be celebrated. The government can no more
force Phillips to speak those messages with his lips than to express them
through his art." One has to ask whether or not the baking and decorating
of a cake is equivalent to that of the artistic expression in painting a
picture. In addition, doesn't Jack Phillips, under the First Amendment, have
the right to, through art or other routes, only express his religious beliefs?
And not the beliefs of others?
On the other hand, there is this notion that
someone such as an Atheist restaurant owner could not turn away a Catholic
customer. For this would be a violation of the Catholic person’s First
Amendment right to expression of religion. So is this equivalent to Mr.
Phillips violating an anti-discrimination law? Sexual orientation is not
explicitly in the first amendment, but is it equivalent to religious beliefs
and/or the freedom of speech?
The last questions I have to leave with are how
powerful are our constitutional rights? Is the freedom of religion right
powerful enough to override a state anti-discrimination law?
10 comments:
I think that, based off precedent from the SCOTUS ruling in Burwell v. Hobby Lobby (2014), the baker should not be forced to make a cake for the couple. The case decided that closely-held private companies could be exempt from state laws that owners religiously object to (in this case being the discrimination law) if there was an easier way to further the law's intent (in this case, it would be finding a new bakery). By forcing the owner of the shop to create the cake, the government is taking away his Free Exercise rights by making him endorse something that is against his beliefs. By creating a custom cake, which is considered art and a form of expression, he should be protected under the First Amendment. If this were a case about the baker not selling the couple pre-made pastries, I believe he would 100% be in violation of the law.
I agree with you in the sense that this is an extremely complex issue that raises a lot of questions. However, I do think it is important to note that Phillips previously refused to make cakes that were made to celebrate divorce, Halloween, and those with provocative messages/ themes. In this case, although complicated and controversial, I believe Phillips has the right to not make the cake for the customers. Like Will said previously, had the couples wanted a regular cake it would have been considered discrimination to refuse to serve them, as it would have been attack against them as people, rather than the action of them marrying. However, because these customers wanted a cake that was intended to celebrate their marriage, which Phillips does not believe in due to his religion, he has the right to refuse to bake the cake under the First Amendment "free exercise" clause, just as he did with the cakes that were Halloween- themed or divorce-themed (which no one ever took issue with).
Due to the fact that Phillips is the owner of a privately run and owned company, and religiously objects to making a cake that expresses satisfaction or enjoyment for a cause that he disagrees with, I do not believe that he should be forced to bake the cake. The customization of the cake, as Will previously brought up, allows the cake to act as an artistic expression of the proprietors desire, and if he were selling more commercialized or pre-made foods then he would be guilty of discrimination. It is Phillips right to free-exercise that allows him to decide what he wants to create and the people he would sell his creations to.
As Will brought up, with precedence from Burwell v. Hobby Lobby (2014), it is up to the owner to what they choose to bake for their customers. They chose a business that was privately owned, and requested a cake that the owner religiously objected to. Also, based on prior actions that Jill mentioned as well, I think it is important to note that this isn't discriminatory towards the same-sex couple getting married, this is just an enacting of his faith. He has an established belief set in his religion that has made him turn down prior cakes that would violate his faith, so I see no ill-intent or bigotry in his decision to deny them a cake. The free exercise of his religious beliefs are being hindered due to the fact he would be forced to make a cake that violates his religious beliefs.
I think that the baker's decision should be allowed. The example of having an Atheist refusing a Catholic food at a restaurant is different than an extensive cake which most would consider art. If this is considered art the person who is creating it should have the right to refuse to create art which goes against their religious beliefs. An Atheist artist should not have to create a painting depicting the divinity of Christ nor should a Christian be forced to create a painting depicting Christ in a manner that denies his divinity. By forcing the baker to create something that is a direct violation of his religion the court is infringing on his right to freely exercise his religion.
From a legal standpoint, I think Will is correct. The SCOTUS ruling in Burwell v. Hobby Lobby set a clear precedent that businesses owners should not be forced to change some business practices based off their personal and religious beliefs. In the majority opinion of this decision Justice Kennedy cited the case of City of Boerne v. Flores for criteria to allow the government to proceed with forcing Hobby Lobby to provide insurance which would involve options for family planning. Kennedy stated he believed the government failed to demonstrate it had taken the least intrusive steps to implement the birth control policy. This is where I disagree with Kennedy and ultimately disagree with the precedent surrounding this case. I do not see how the government forcing a private business to provide certain access to contraception impacts an individuals ability to practice their religion in any way. As a result I do not see how the government was intrusive when implementing this policy. The owners of Hobby Lobby were not being forced to personally buy contraception, their business was. As a result I think the cake shop owner should be forced to make the cake, or be forced to refile as an art shop rather than a cake shop. I believe there must be a legal separation between a business and a business owner, the owner has religious freedom while the business does not.
At first I was in agreement with the argument that the baker should not be forced to create a cake for a marraige that is against his religion. However, after reading Grace's comment at the end of her post about an atheist restaurant owner not allowing catholics to eat in their restaurant I thought about how this type of ruling has the power to drive more and more seclusion and wrongful discrimination of individuals for any reason that they see fit. Thinking back to the Jim Crow Laws, we have made great strides in this country when it comes to discrimination. If this baker is allowed to publically announce that he will provide his products for everyone exept for homosexuals, where does it end? Can any business owner put up a sign on their doors saying "no Muslims allowed" or "no Blacks allowed"?
The hardest part about this ruling is that each one creates a slippery slope for future cases and opens doors on restricting religious freedom or abusing so called religious freedom. I think this case about the baker opens the door for great discrimination. Technically a bakery could refuse to make a communion cake or any other cake that it feels goes against its religious beliefs if the case is ruled in favor of Mr Philips. The law can only go so far in terms of making people tolerant of each other’s religions. We are allowed to have our freedom of choice, practice, and conscience. For our country, as a religious melting pot, it is essential that we learn to coexist together. In regards to the cake being an artistic expression, I do not believe that making the cake promotes gay marriage at all. I don’t think it changes anyone’s opinion on the subject, nor do I think it encourages gay couples to wed, and I certainly do not think it is considered against the Christian faith. The baker is not being asked to attend the wedding or officiate it, but merely to make a cake. Even if the owner of the bakery did not want to personally make the cake because of his strong religious beliefs, other accommodations could have been made. He could have had another employee make the cake. As long as the cake did not say anything on it endorsing gay marriage, a simple white cake with a couple flowers on it is not infringing on anyone’s freedom of religion. In this case, the court should side with the gay couple not the baker.
I believe the freedom of expression does protect private owners, the laws against discrimination are largely set in making sure the government does not discriminate. That being said the SCOTUS can change that. This is a key issue in the classical dilemma, freedom vs. order, do we want less discrimination at the cost of rights or vice versa?
I agree with you Grace that since the cake had not already been made there is technically still an artistic expression that needs to be made. Legislation should not be able to control the religious ways in which one chooses to express their artistic expression. I also believe that it is important to note, as Jill did, that Philips is not solely refusing to use his talents to make cakes for homosexuals, but also for events such as Halloween. This demonstrates that he is trying to be true to all of his religious beliefs and not simply one facet of his belief that gay marriage is wrong. From this reasoning I believe that Philips should be able to create what he pleases as long as he does not refuse to sell pre made cakes to those whose view does not aline with him. I would also like to recognize a counterargument to this reasoning by promoting Blake's comment. This case does involve a "slippery slope". A lot of activities can be claimed as creative therefore should all items that take creativity be at the holders decision of who to sell them to?
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