Jack Phillips owns the Masterpiece Cakeshop in Lakewood, Colo., about ten miles from downtown Denver. In July 2012, two gay men, Charlie Craig and David Mullins, asked Phillips to provide the cake for their wedding celebration. Though same-sex marriage is not allowed in Colorado — the Colorado constitution states that “only a union of one man and one woman shall be valid or recognized as a marriage in this state” — the two men had been married in Massachusetts.
As acknowledged by all parties, Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies; I just don’t make cakes for same-sex weddings.”
Jack Phillips is an Evangelical Christian, and his religion does not allow him to participate in same-sex marriages or celebrations of same-sex marriages.
In other words, Phillips made it clear from the outset that he does not discriminate based on the sexual orientation of a prospective customer. He will knowingly sell his products to any gay person who wishes to purchase his baked goods.
Nevertheless, Craig and Mullins went to the ACLU, which then sued Phillips. On December 6, administrative law judge Robert N. Spencer handed down his decision: “The undisputed facts show that Respondents [Masterpiece Cakeshop] discriminated against Complainants [Craig and Mullins] because of their sexual orientation by refusing to sell them a wedding cake for their same-sex marriage, in violation of § 24-34-601(2), C.R.S.”
The section of the C.R.S. (Colorado Revised Statutes) cited by Judge Spencer reads:
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.
Thus, under penalty of fines and, potentially, jail:
1. Jack Phillips must participate in an event that the Colorado constitution explicitly prohibits.
2. He must do so against deeply held religious convictions.
3. He must do so despite the fact that there are hundreds of other cake makers in the Denver area.
Those who support this decision argue that religious principles do not apply here — what if, for example, someone’s religious principles prohibited interracial marriages? Should that individual be allowed to deny services to an interracial wedding? Of course not. Here’s why that objection is irrelevant:
1. No religion practiced in America — indeed, no world religion — has ever banned interracial marriage. That some American Christians opposed interracial marriage is of no consequence. No one assumes that every position held by any member of a religion is the position of that religion.
2. If opposition to same-sex marriage is not a legitimately held religious conviction, there is no such thing as a legitimately held religious position. Unlike opposition to interracial marriage, opposition to same-sex marriage has been the position of every religion in recorded history — as well as of every country and every American state in history until the 21st century.
3. The Colorado baker made it clear to the gay couple — as acknowledged by the court — that he would be happy to bake and sell cakes to these gay men any other time they wanted. Therefore, he is not discriminating against people based on their sexual orientation. He readily sells to people he knows to be gay. What he is unwilling to do is to participate in an event that he opposes for entirely legitimate religious reasons. Until at the most ten years ago, no one would have imagined that a person could be forced to provide goods or services for a same-sex wedding.
4. If a baker refused on religious grounds to provide the wedding cake for a polygamous wedding, should the state force him to do so? If a baker refused to provide a cake to a heterosexual couple that was celebrating living together without getting married, should the state force him to?
Some years ago, Jonah Goldberg wrote a bestseller titled Liberal Fascism. If you think that title is an exaggeration, read the book. Or just watch what liberals are doing to those who oppose same-sex marriage.
In the name of tolerance, the Left is eroding liberty in America.
— Dennis Prager is a nationally syndicated radio talk-show host and columnist. His most recent book is Still the Best Hope: Why the World Needs American Values to Triumph. He is the founder of Prager University and may be contacted at dennisprager.com.