BQ 81245 Religious Rights of Business Owners

[S.A.M.]

The decision did not force Mr. Phillips through the weight of law to express a point of view contrary to the dictates of his conscience. He is still free to believe same-sex marriage is wrong. He is still free to express that point of view in print, verbally, or whatever. It compelled him to treat customers equally.

[NovemberEast]

I brought that up to point out how it appears he sides on the far side of christianity.

Like I said before, if he didn't want to do the job he should have just said he was unable to do the cake that day and point them towards other bakers he thinks are good too.

[vorpal blade]

If a baker refuses to make Halloween or bachelor cakes for anyone, that is ok. If a baker refuses to make Halloween or bachelor party cakes for specific groups of people, let's say Mormons, for example, that is not ok.

Jack Phillips does not discriminate on the basis of who or what the customer is. Which is what the law in this case actually demands. He does not discriminate for sexual orientation. He serves gay people as well as all others in the same way as long as the purpose of his services is to a cause he believes agrees with his Christian principles. He does discriminate on the basis of what purposes his services are to be given. After all, he does not wish his services to be employed for a cause that he believes is morally wrong. This is a distinction that Judge Spencer said was a distinction without a difference, but I believe Judge Spencer is wrong.

In point of fact Jack Phillips will not sell a wedding cake to a heterosexual couple if that couple is going to give the cake to a same-sex couple. It is not the specific group of people he refuses to serve, it is the purpose for the cake.

I don't agree with Jack Phillips in all his beliefs, but I don't feel I have to force him to change. He isn't harming anyone in not making cakes for Halloween or bachelor parties or same-sex marriages. They can easily go somewhere else. He may hurt their feelings, and they may hurt his feelings, but it seems a small price to pay for living in a society where we are not closeted for expressing ourselves in a civil way.

So, is Jack Phillips okay with you, S.A.M?

[vorpal blade]

I brought that up to point out how it appears he sides on the far side of christianity.

Like I said before, if he didn't want to do the job he should have just said he was unable to do the cake that day and point them towards other bakers he thinks are good too.

To paraphrase what Yayfulness said, "I hope you can see the irony of a baker almost literally being forced back into the closet in order to not render services for a wedding he believes is immoral. Whether or not the baker was within his rights to refuse them service, I think suggesting a baker pretend to be unable to do the cake that day is a really terrible and insensitive idea." But, I still like you NovemberEast.

[vorpal blade]

The decision did not force Mr. Phillips through the weight of law to express a point of view contrary to the dictates of his conscience. He is still free to believe same-sex marriage is wrong. He is still free to express that point of view in print, verbally, or whatever. It compelled him to treat customers equally.

As I pointed out, Mr. Phillips thought that making a wedding cake for a same-sex marriage would express a point of view contrary to the dictates of his own conscience. And as I also pointed out, Craig and Mullins also thought that if Mr. Phillips were forced to create wedding cakes for other gay couples he would be expressing the view that same-sex marriage is of equal moral value and just as deserving of respect as heterosexual marriages. They also thought that other gay couples would feel the same way. This seems to be the consensus of parties on both sides of the dispute. You, of course, are free to believe otherwise.

It seems rather hollow to me to be permitted to believe same-sex marriage is wrong and be permitted to say so as long as you don't say so with your actions. Keep those beliefs to yourself, in the closet, so to speak, as long as you serve Mammon and not God.

And, as I also pointed out, he did treat customers equally. No one was to get a cake for a purpose that went against his Christian principles.

[Digit]

Cake EULAs?

[NovemberEast]

To paraphrase what Yayfulness said, "I hope you can see the irony of a baker almost literally being forced back into the closet in order to not render services for a wedding he believes is immoral. Whether or not the baker was within his rights to refuse them service, I think suggesting a baker pretend to be unable to do the cake that day is a really terrible and insensitive idea." But, I still like you NovemberEast.

Oh I don't deny that it's insensitive to him. It totally is. The whole thing is. People went out with their pitchforks and destroyed this guy and his family probably paid a price too.

I'm only saying that's what I think he should have done because, knowing the world we live in, it's probably what I would do and what I'd hope my husband would do. You could see it as being dishonest and perhaps it is disingenuous. I, however take to Pres Hinckley's advice:

"Each of us has a fourfold responsibility. First, we have a responsibility to our families. Second, we have a responsibility to our employers. Third, we have a responsibility to the Lord’s work. Fourth, we have a responsibility to ourselves.”

If it would harm my family, I'd think twice. While that may have been directed towards the priesthood brethren, I think it's good advice for everyone. I'd put taking a public stand for my religious beliefs aside so my family could be protected (by keeping my business going and the press away). You may disagree, but I think we agree more than we disagree. I know there are conference talks and scriptures out there that say we should stand up for our beliefs regardless. I can think of quite a few recent ones. And that is also true but this is where it gets personal, prayerful, and highly dependent on spiritual promptings.

Truly, I do not think he should HAVE to do that. But it's just not the world we live in and I err on side of acting defensively.

[S.A.M.]

No one was to get a cake for a purpose that went against his Christian principles.

This is discrimination. Aligned with principles, cake for you - against principles, no cake for you!

The purpose of a wedding cake is to be eaten! It's not to express the political or religious view of the baker.

[vorpal blade]

Cake EULAs?

I'm enjoying your comments, Digit. Pretty strange, isn't it to worry about cake end use? But I admire the guy's religious commitment, and I defend his right to practice his religion as he feels he must. If he were seriously harming people I'd feel like he should be reigned in, but there are other laws which do that. To some of us it may just be cake, and hard to understand what all the fuss is about. To Phillips, and to Craig and Mullins, it is the principle of the thing, not just the cake. Thus, the culture wars.

[vorpal blade]

No one was to get a cake for a purpose that went against his Christian principles.

This is discrimination. Aligned with principles, cake for you - against principles, no cake for you!

The purpose of a wedding cake is to be eaten! It's not to express the political or religious view of the baker.

It is discrimination against certain choices people make, not discrimination against the people.

Objects can and do have symbolic meaning; don't underestimate that. To you it may be just a cartoon of Mohammed riding a missile. To a Muslim it is not just a cartoon to be laughed at and thrown away. It proof that his religion is not being respected and treated with the equality he thinks it deserves. It comes to mean all that is offensive and dangerous in Western values.

If the wedding cake doesn't express anything to you then are you with Jack Phillips and say he shouldn't have to make a cake for a purpose he doesn't approve of? After all, it's just a cake, so why not let him be free to decide if he wants to bake it or not? Why make the cake express a political or religious view by insisting that he create it for a same-sex marriage? Why not be neutral and let him decide?

[vorpal blade]

Truly, I do not think he should HAVE to do that. But it's just not the world we live in and I err on side of acting defensively.

I've thought a lot about the issue you have brought up here. I don't know if I have the answer yet. As I look back on the great people in the Bible or in history, it seems to me it is often the little things that made a difference, when it would have been so easy to just take your seat in the back of the bus and not cause any trouble, or just bow your knee and pretend to worship the golden image.

I imagine that Shadrach, Meshach, and Abednego could have just quietly gone through the motions. While kneeling before the golden image that Nebuchadnezzar had set up they could have actually been saying a little prayer to Jehovah. Who would know the difference? Why risk throwing your life away for something so unimportant as nodding your head? Why couldn't Daniel have kept his windows closed so that no one saw him praying?

Why not denounce your country as a prisoner of war if it saves your life? Just say a few words that they want to hear. Perhaps that is what you would want your husband to do, but I know my wife would not. Why not provide that food for the idol that the emperor demands if you have higher priorities like your family. Why not lie a little for a good cause? Why couldn't Mormon deny the Christ and live? Just a few words that he didn't believe. Would God hold him accountable for that?

I can see the point that sometimes blind obedience to a principle may not be what is best. We don't fail if we truly follow the Holy Ghost. But it is so easy to gradually lose your integrity over a lifetime of little compromises that in and of themselves are no big deal. It is so easy to rationalize behavior because we are scared of the consequences of doing otherwise.

[vorpal blade]

But Vorpal, that can be said about any kind of law that enforces anything. As much as you'd like it to be different, whatever laws exist enshrine a particular moral viewpoint at the expense of another. Should a shop owner be allowed to refuse black people into his restaurant, because he believes them to be morally inferior? Or should those of us who view all races as morally equal and defined by their choices be allowed to use the law to compel that the law recognize differently? You can't have it both ways. Either the law says that heterosexuality is superior or it says that heterosexuality and homosexuality are morally equivalent. It can't do both.

I am sorry to post so much, but I do read and think about what everyone says. I'd be more interested in pursuing the many ramifications of my train of thought in other situations and with other laws if we could just agree on one specific law in one specific case, such as this one with Mr. Phillips and the Masterpiece Cakeshop. If we cannot agree that the discrimination law was improperly applied to Phillips, and a legal injustice was done to him in this case, then what is the point of broadening the discussion?

[S.A.M.]

Pretty strange, isn't it to worry about cake end use? But I admire the guy's religious commitment, and I defend his right to practice his religion as he feels he must. If he were seriously harming people I'd feel like he should be reigned in, but there are other laws which do that. To some of us it may just be cake, and hard to understand what all the fuss is about. To Phillips, and to Craig and Mullins, it is the principle of the thing, not just the cake.

This is great. I agree with this wholeheartedly. We have to defend our right to practice religion as we feel we must, up to the point that it causes harm to other people. It isn't just about the cake. It's about the principle of discriminating against anyone, even for something as trivial as cake.

It would have been so easy for this couple to just take a seat in the back of the bus and not cause any trouble, and just go purchase a cake from somewhere else, which they did. But they also stood up for a principle, and I admire them for that, and defend their right to be treated the same as any other citizen of this country, even for something as trivial as cake.

[NovemberEast]

I get what you're saying, but I hardly think making a cake for a same-sex wedding is the same as denouncing God. I'm not even sure yet if it's the same as condoning same sex unions. For him, I suppose it did seem that way so he acted according to his own conscience. So it must have been right for him.

It's definitely a balancing act that we are charged to perform here on earth.

[No Dice]

Hi folks. A couple of things.

Offering to make wedding cakes for heterosexual couples, but not homosexual couples, is discrimination on the basis of sexual orientation. It might be discrimination we're okay with, but if you're with the baker, the way out of this problem isn't saying that this isn't discrimination.

Lots of these cases are test cases (i.e., gay rights advocates get word of a baker/photographer/florist who says they won't do gay weddings; they go and ask, not ever really intending to get a cake/picture/flower; they're denied; they sue). It's all set up from the beginning. That bugs lots of people, but for obvious reasons, it shouldn't matter legally.

In case anyone is curious, here are the two ways most people think about these cases.

First, someone who is creating something expressive (like photography, decorated cakes, or flower arrangements) has a compelled speech claim. (Basically, the First Amendment's speech clause—not its religion clauses—mean that the government often cannot compel citizens to produce certain speech. The two most commonly cited cases are a Pledge of Allegiance case (gov can't make you say the Pledge) and a license plate case (gov can't prohibit Jehovah's Witness from covering up state slogan on license plate)).

Compelled speech claims have failed in each of these wedding cases (the CO cake case, the NM photography case, and WA flowers case). But most people who think hard about this stuff figure that the strongest argument is a compelled speech one. If that argument is successful, it would cover both gay wedding cases and any other speech case (God Hates Gays, Confederate flags, swastikas, etc.)—the government simply wouldn't be able to compel people to produce expressive speech. So, freelancing writers couldn't be required to write press releases for either the KKK or a gay rights group, for example.

The other way to think about it is a religious exemption. The federal government, and lots of states, have religious exemption laws (usually called RFRAs). RFRAs work like this: if the government has a law that substantially burdens someone's religion, that person can petition for an exemption from the law, which they receive unless the government has a compelling interest in enforcing the law despite its impact on their exercise of religion. It's important to understand that these religious exemption laws don't spring from the First Amendment (in fact, they came about because the Supreme Court said that the First Amendment doesn't require exemptions to generally applicable laws).

In the religious exemption context, the cake case would work like this: a baker would refuse to bake a cake for a same-sex wedding. The gay couple would sue, arguing that the baker violated the relevant discrimination law (usually a public accommodations law). The baker would probably concede that she violated the law, but claim an exemption under the state RFRA. A judge would have to decide whether the public accommodation law substantially burdened the baker's religion (probably) and whether the government has a compelling interest in enforcing the law anyway (also, probably).

I say "probably" because that's how all of these cases have come out—the religious business owner always loses. But chances are that one will eventually come out the other way. It'll probably produce a rule like this: small businesses (say, <15 employees) who sincerely believe that they cannot, consistent with the religion of their owners/employees, produce goods for same-sex weddings (maybe only expressive goods), receive an exemption.

To head off a common question: could a business request an exemption from baking a cake for an interracial wedding, if they believed their religion forbade sponsoring such weddings? The answer is maybe. There are good reasons to think that the government has a more compelling interest in doing away with discrimination based on race rather than discrimination based on sexual orientation. And there are good reasons to think that such claims would be less common in the first place, or that they may be insincere. But, nonetheless, the answer is "maybe"—the logic doesn't work any differently. It's just that by the time you apply the test with different inputs on the burden and compelling interest ends, you might get a different output.

One final thing. This "are corporations people" thing has spiraled way out of control in public commentary. Nobody disputes that corporations count as "persons" (not people) for lots of legal purposes. This is one of them: it makes no sense that an individual would lose all of her speech or religious exercise rights just by incorporating, which is why corporations can bring both speech and religious exemption claims (and have been able to bring those claims for, basically, ever).

Edited for spectacular grammar fail.

[Tally M.]

*Slow clap*

[Marduk]

I still see a distinction between baking a cake for a gay wedding and writing hate speech on a cake. In the former, the cake is not substantially different from cakes that are normally baked by that baker, meaning that particular good is offered to others, which makes it a case of discrimination, whereas the second cake is one that would not be offered to any customer, regardless of their affiliation. Am I missing something?

[No Dice]

So, in the compelled speech context, it depends whether you think of a typical wedding cake as expressive. I think most bakers would tell you that they consider their wedding cakes to be expressive, creative works of art (like what a florist would tell you about a floral arrangement). That's true even if they've created some standard design that they sell for heterosexual weddings too. Their objection is that their expressive creation, the wedding cake, is being displayed at an event they have a religious objection to. After all, wedding cakes are traditional, symbolic celebrations of the ceremony (not just nourishment). They even have those little people figurines on them. Does it change your mind if the gay couple insists that the bakery depict two men or women on the top of the cake?

Now, maybe you don't buy it. Maybe you think wedding cakes are like pizzas—mass market, undifferentiated goods. In that case, there's really no compelled speech claim. You could still ask for a religious exemption, but it's a stretch to say that the presence of your pizzas at a gay wedding communicates support for the wedding (just like it would be a stretch to say the same things about the napkins, or the chairs, or the drinks). But—for the record—creative wedding cakes seem expressive to me, which lands us in compelled speech territory (the same territory that you're thinking of the hate speech in).

So yeah, think about it in terms of whether the thing is expressive. Photography is the easiest case—definitely expressive. Wedding gowns, or custom tuxedos? Probably expressive. Flowers? Probably expressive. Decorated, formal wedding cakes? Probably expressive. Undecorated cakes? Hmmm, starting to get closer. Truly mass-market stuff? Not expressive. Renting venue space gets hard, since the venue appears in photographs. I tend to think that's expressive, but very smart people disagree.

On the hate speech note: you might think people shouldn't have to write hate speech on cakes because it's hate speech, and hate speech is bad. But that's not what a compelled speech claim looks like. The government (generally) can't compel people to write anything they don't like, even if it's "Save the Whales" or "Happy 40th Birthday Angela" or some otherwise unobjectionable thing. That it's offensive speech doesn't matter; we can't possibly have a constitutional rule that says "The government can force people to write nice things but not mean things."

So, if I refused to write hate (or any other) speech on a cake, and an angry customer claimed that I had to under public accommodations law, that's a pretty straightforward compelled speech case. But notice that there is still potentially some discrimination going on. What if a merchant said, "I'll write anything you want on your cake, except 'Praise Allah.'" Is the merchant discriminating against Muslims? You can see how this gets slippery. Either way, there's a (rather good) compelled speech claim.

[Marduk]

Right, the baker would have to show in some way that it was a refusal to write a given message, not to serve a customer based on a protected class.

[No Dice]

Well, not really. The compelled speech doctrine is powerful; it overrides public accommodations law (the compelled speech doctrine is part of the First Amendment; laws that mandate serving everyone are just normal statutes, so the Constitution wins). My point isn't that discrimination makes the case tricky; it's just that there might be elements of discrimination even in cases that look like pure speech cases.

Take an example. Say I'm a committed atheist, and I also happen to run a public relations company. A local church comes to me and asks me to craft a press release on a new youth conversion program they're running. I say, "Sorry, not happening." Have I refused to write a given message or have I refused to serve a customer based on her religion?

The short answer is it probably doesn't matter. Even if what I really don't want to do is serve religious people in any context, the government can't—consistent with the First Amendment—compel me through public accommodations law to create speech I don't like.

Now you might retort that that just means that public accommodations laws don't mean anything when it comes to people who create expressive stuff for a living. And you'd be more or less right.

The key case on this issue is a Boston parade case called Hurley—a private St. Patrick's Day parade denied a gay rights group's application to march in the parade. The group sued to make the parade let them in, and they lost in the Supreme Court. The government wasn't permitted to force the parade to accept or promote messages they didn't want to accept or promote—even if the parade's decision ran afoul of public accommodations law.