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Religious Tolerance logo

Colorado Baker Won't Make Wedding Cake
for Gays. Golden Rule. Justice Dept.
favors baker's freedom to discriminate.
2017-DEC: Supreme Court hearing.


Part 3 of three parts.

marriage 1

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This topic is continued here from the previous essay

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Few media outlets seem to discuss the Golden Rule when covering cases similar to the Masterpiece Cakeshop's refusal:

The Golden Rule -- formally called the Ethic of Reciprocity -- is a core belief of Christianity as well as all other main religions. It basically says that a person should treat others as she or he would wish to be treated.

The Christian Scriptures (New Testament) contain two quotations attributed to Jesus of Nazareth, that require obedience by Christians to this rule. They appear to have direct application in this case. From the King James Version of the Bible:

  • Matthew 7:12 states: "Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets."
  • Luke 6:31 states: "And as ye would that men should do to you, do ye also to them likewise."

This website has quotations from more than 20 other world religions that also promote the Golden Rule.

Nobody, who is planning a wedding, wants to be refused service when they try to purchase a custom wedding cake for their reception, or to rent a venue, or obtain the services of a professional photographer. Refusing service to customers was common place decades ago when Blacks were frequently refused service, or had to drink out of special public water fountains, or sit at the back of the bus. However, such discrimination was largely abolished in the 20th century.

The Golden Rule appears to indicate very directly that if the owner of a public accommodation belongs to the Jewish, Christian, Muslim or any other major faith, then they should try to accommodate the wishes of all of their customers and sell then the goods or services that they are requesting. Such a policy would be helpful financially to the store owner, because it would tend to increase company sales and avoid fines.

Curiously, the Golden Rule does not seem to be a major factor in media accounts of this type of discrimination by public accommodations. A brief Google search turned up no references in at least the first pages of its results.

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2017-SEP-07: The federal Department of Justice filed a brief supporting Colorado baker:

Entering the epic battle before the U.S. Supreme Court between individual human rights rights and the religious freedom to discriminate, the federal Department of Justice filed a brief before the Court in favor of discrimination. The government agrees with the owner of the bakery, Jack Phillips, that his custom cakes are a form of artistic expression, and that he cannot be compelled to use his talents to create something that he opposes on religious grounds. In the brief, Acting Solicitor General Jeffrey B. Wall wrote:

"Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights." 2

A brief video by the Washington Post discusses the fundamental aspects of the Masterpiece Cakeshop v. Colorado Civil Rights Commission lawsuit:

 2

Steven Petro of the Washington Post interviewed Jim Obergefell, the main plaintiff in the landmark Supreme Court case, Obergefell v. Hodges, which legalized gay marriages in mid-2015:

 2

Louise Melling, the deputy legal counsel of the American Civil Liberties Union, which is representing the couple, said that the Trump administration is trying to create a:

"... constitutional right to discriminate. This Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear. But this brief was shocking, even for this administration. We are confident that the Supreme Court will rule on the side of equal rights just as the lower courts have." 3

The article in the Washington Post from which the above quote was extracted, received 3,630 comments from readers in the first three days!

Webmaster's comment:

I lack the belief that the High Court has a high probability of ruling against religiously-inspired discrimination. I predict a 5 to 4 ruling, which is common among cases involving human rights for the LGBT community. It could go either way. If President Trump is able to replace:

  • a Justice on the court who interprets the U.S. Constitution as a living document whose meaning changes with evolving public opinion,
with
  • a strict consructionist or originalist who interprets the Constitution using the mind-set and belief systems of its authors, then

I suspect that Court will adopt the belief that the First Amendment to the Constitution guarantees individuals, like bakers, the religious freedom to discriminate against others.

Adam Liptak, writing for the New York Times, discussed Floyd Abrams:

"... the nation’s most prominent First Amendment lawyer. ... He almost always argues in favor of free speech. But he has struggled with the case of a Colorado baker ...

'But the more I thought about it,' Mr. Abrams said, 'the more I thought of other possibilities. Could a painter invite the public to his gallery at which he painted portraits of them for a fee but refused to paint black people? Could a musician invite the world to his studio where he wrote songs about them for a fee but refused to do so for Jews or Muslims? The First Amendment protects a lot, but not that conduct.'

In the end, Mr. Abrams signed a brief supporting the gay couple, David Mullins and Charlie Craig. It was one of close to 100 friend-of-the-court briefs filed in the case, an extraordinary number. Among the most interesting ones are from deeply committed First Amendment experts who have struggled to find the right balance between protected expression and unlawful discrimination." 6

The texts of the almost 100 friend-of-the-court briefs can be downloaded from SCOTUSblog. 7

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There have been about a dozen cases similar to the "Masterpiece Cakeshop v. Colorado Civil Rights Commission" case discussed in the media. Many involved selling goods or services for gay marriages. But this is the first to be accepted by the U.S. Supreme Court. Their ruling will have a profound effect on the scope of religious freedom in the United States. It will decide whether companies can violate human rights laws and ordinances by discriminating against others on religious grounds. The key question is whether the First Amendment to the U.S. Constitution guarantees only the freedom of religious belief, speech, assembly, and proselytizing, or does it also include the religious freedom to violate human rights laws and ordinances, and to discriminate against others.

In essence, their decision will determine which part of the U.S. Constitution rules in these cases: the First Amendment that generates religious freedom, or the 14th Amendment that guarantees equal treatment.

No matter how the High Court rules, their decision will have a major impact on U.S. culture, and the treatment of people of different races, genders, skin colors, national origin, marital statuses, sexual orientation, gender identities, etc..

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Hearing before the U.S. Supreme Court:

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was heard on 2017-DEC-05:

 4

Adam Liptak, writing for the New York Times referred to the Masterpiece Cakeshop case as:

"... the latest battleground in the culture wars ... a hard-fought clash between gay rights and claims of religious freedom that was a sort of sequel to the court’s 2015 decision establishing a constitutional right to same-sex marriage. ... some justices worried that a ruling in [the owner's] ... favor would undermine the 2015 decision’s promise of equality. But other justices said that a tolerant society must leave room for good-faith dissent based on religious principles."

Some Justices questioned whether the making of a cake wound be considered a form of speech, and how the court could differentiate among various business owners producing a variety of goods or services like a jeweler, hairstylist, makeup artist, chef, or wedding dress tailor.

Justice Anthony M. Kennedy has been the deciding vote in past High Court rulings, including the LGBT community:

  • The 2003 ruling in Lawrence v. Texas that legalized same-sex sexual behavior among consenting adults in private, and

  • The 2015 ruling in Obergefell v. Hodges that legalized gay marriage across the U.S. except for the territory of American Samoa.

The court rulings in both of these cases had been 5 to 4. There is a strong possibility that Masterpiece Cakeshop will be another.

He asked whether a baker should be free to post a sign at his businesses saying: "We do not bake cakes for gay weddings."

  • A Trump Administration lawyer said that he should be able to post such a sign as long as the cakes were custom made. This implies that such cakes are works of artistic expression that are thus forms of religious speech in which religious freedom to discriminate is guaranteed.

  • Justice Kennedy appeared concerned and asked: "You would not think that an affront to the gay community? 4

Later in the hearing, he commented that "

"Tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs."

David Cole, the National Legal Director for the American Civil Liberties Union, who was representing the gay couple, said that the conflict did not involve the couple's speech. He said:

"The only thing the baker knew about these customers was that they were gay. There was no request for a design. There was no request for message. He refused to sell any wedding cake. And that’s identity-based discrimination."

Actually, Cole is wrong. At the time, the owner of the shop offered to sell the couple any ready-make cake on display in his shop. He refused only the creation of a custom cake.

Some demonstrators gathered in front of the Supreme Court building carrying signs reading:

"Free the Cake Baker." 4

Within 22 hours, readers of the New York Times article had added 1726 comments. Among last ten comments before the section was closed were the following seven:

  • "Sammy" from Florida: "Its really not a culture war. If you run a business you have to serve everyone, you don't get to discriminate. Period, end of story. if your religion requires you to discriminate against Catholics, or gays, or women, or African-Americans, then you don't run your own business."

  • "LouiseH" from the UK: "What's the baker's views on divorced people remarrying? Does he refuse to make birthday cakes for children born out of wedlock? And can I presume any cakes for Jewish celebrations are right out? Surely it can't just be gay marriages he objects to? In a world crammed full of people not doing everything the Old Testament demands, that would make no sense at all." (This comment received 1,144 "likes," by far the largest number among the final ten comments.

  • "RedM" from New York state: "Should the baker be forced to hold a sign saying he supports gay rights? He is not required to make a statement saying that he agrees with the sign and he is allowed say he disagrees with the sign but since a law has been passed supporting gay rights all citizens are required directly or indirectly support gay rights in their capacity. We cannot or no longer voice disagreement with a law we must all support that law regardless of your personal point of view. Does the gay rights law supercede other laws protecting your right to refuse service or to hold an opinion. Are we all required to hold a sign in support regardless of our views. He should not be forced to violate he views if in doing so does not cause physical harm. They can eat cake elsewhere or open their own.

Webmaster's comment: Actually, the baker has the right to voice disagreement with a law. he can hold any opinion about the LGBT community and gay marriage that he wishes. But if he is operating a business to offer goods or services to the general pubic, then the Colorado law says that he is not allowed to discriminate on the basis of gender, race, sexual orientation, etc.

  • "CJ" from California: "I hate this case. I wish the couple hadn't been discriminated against but I don't see how it is legal to compel someone to make a creation they don't agree with. As a gay man I feel a looming doom about the ruling in this case and its broader implications, all thanks to a wedding cake."

  • "Angela" from Illinois: "HOW is this even an issue that people are still divided on, much less Supreme Court Justices? Gay marriage was made legal in all 50 states of the United States in 2015 so now gay people can legally get married. Wouldn't that logic then apply and mean that they are also legally entitled to wedding dresses/tuxes, catering, flowers, venues, and CAKE from all public wedding businesses? Homophobia will always exist to some extent in our nation but as soon as the government starts insisting that gay people must receive all the same rights as everybody else, popular opinion will start changing even faster. It happened with civil rights for African Americans, and it will happen with civil rights for gay Americans. Let's just take the right position now so we can skip all the other bigotry that comes in between."

  • "Susan" from Massachusetts: "It's not a 'gay-wedding' cake. It's a wedding cake, period. Since marriage is legal for both opposite-sex and same-sex couples there is no legal grounds to distinguish one from the other."

  • "Dave" from California: "This case makes no sense. This is not a question about "forcing" anyone to take part in a ceremony which is against their religion. Does the baker also check for felons, sexual predators or murderers who order cakes for celebrations? Should auto mechanics start refusing to repair cars of people who participate in celebrations they disagree with? Should Christian plumbers stop fixing the drains of divorced women? Where will this end?" 4

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Image by Zipnon. CC0 Creative Commons, downloaded from Pixabay.com
  2. Robert Barnes, "In major Supreme Court case, Justice Dept. sides with baker who refused to make wedding cake for gay couple," 2017-SEP-07, at: https://www.washingtonpost.com/
  3. David G. Savage, "Trump lawyers urge Supreme Court to rule for Colorado cake maker who turned away gay couple," Chicago Tribune, 2017-SEP-10, at: http://www.chicagotribune.com/
  4. Adam Liptak, "Justices Sharply Divided in Gay Rights Case," New York Times, 2017-DEC-05, at: https://www.nytimes.com/
  5. David G. Savage, "Supreme Court sounds skeptical of Colorado baker's refusal to make a wedding cake for gay couple," Los Angeles Times, 2017-DEC-05, at: http://www.latimes.com/
  6. Adam Liptak., "Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers," New York Times, 2017-NOV-06, at: https://www.nytimes.com/
  7. "Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission," SCOTUSblog, 2017-DEC-05, at: http://www.scotusblog.com/

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Copyright © Ontario Consultants on Religious Tolerance
Author: B.A. Robinson
Latest update: 2017-DEC-06

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