Yesterday the Colorado state court of appeals upheld an administrative-law judge ruling that the Christian owner of a Colorado bakery, Masterpiece Cakeshop, did in fact have to bake a cake for a gay wedding regardless of the owner’s religious beliefs. The owner, Jack Phillips, had declined a gay couple’s request that he bake a cake for their same-sex wedding because he “believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages.” Put in less religious terms, Phillips didn’t want to be forced to help celebrate an act he finds deeply objectionable.
The court’s ruling against Phillips is a carnival funhouse of bias, where legal doctrine after legal doctrine is distorted and twisted to make sure that Phillips is forced to comply with the latest mandates of the sexual revolution.
First, when the Colorado Civil Rights Commission filed charges against the bakery, it not only neglected to file against the owner, it also filed under the wrong section of Colorado law. In other words, it charged the wrong party under the wrong statute.
No matter, said the court of appeals. It decided — for the first time ever — to apply the “relation back” doctrine to essentially reset the parties and then simply deemed the rather significant matter of filing a claim under the wrong statute a mere “typo.”
Nothing was going to stop the court from proceeding directly on to the culture war.
Next, the court dismissed Phillips’s defense — that he wasn’t engaging in sexual-orientation discrimination because he was happy to serve gay customers, just not to help celebrate gay weddings – by arguing that, in this case, “conduct cannot be divorced from status,” especially when “conduct is so closely correlated with the status that it is engaged in exclusively or predominantly by persons who have that particular status.” Does this mean that a refusal to bake a Confederate-flag cake would be deemed discrimination against white people? Somehow, I suspect not.
In fact, the court then distinguished Phillips’s case from three incidents where bakeries refused to decorate cakes with references to scriptures condemning homosexual acts. With a straight face, a judge actually wrote the following: “The Division found that the bakeries did not refuse the patron’s request because of his creed, but rather because of the offensive nature of the requested message. Importantly, there was no evidence that the bakeries based their decisions on the patron’s religion, and evidence had established that all three regularly created cakes with Christian themes.”
Follow the “logic.” The refusal of a religious customer’s request for a religious message is not discrimination on the basis of religion in part because the baker has helped convey other religious messages from other religious customers. Yet refusing a gay customer’s request for a message celebrating gay marriage is sexual-orientation discrimination even though the baker has helped other gay customers convey other messages. Got it. The logic is clear: Gays win and Christians lose.
The court then rejects Phillips’s First Amendment compelled-speech argument because “designing and selling a wedding cake . . . does not convey a celebratory message about same-sex weddings likely to be understood by those who view it.” In addition, the court held that wedding guests would attribute the message of the cake to the customer, not to Masterpiece. In other words, a cake celebrating a wedding won’t be understood as celebratory. Right. Nor — despite the fact that every sentient person knows the cake is the baker’s work and not the couple’s — will anyone impute the couples’ views to the bakers.
But if that’s the case — if the clear message of a cake isn’t imputed to the baker but instead the customer — then why is it okay to refuse “offensive” religious messages from religious customers?
Moreover, that same reasoning could be applied to all manner of creative professions. As a lawyer, can I be forced to argue against religious liberty and for abortion or any other sexual-revolution legal doctrine since my arguments would be imputed to my client? Can Media Matters conscript a conservative freelance writer to argue for transgender soldiers?The court concludes its First Amendment analysis by attempting to assure the bakery and the public that it is not in fact preventing anyone from expressing opposition to same-sex marriage. Of course the bakery can’t post anything “indicating that those engaging in same-sex marriage are unwelcome at the bakery,” but it can — get this — post a notice that Colorado law prohibits it from discriminating on the basis of sexual orientation. Translation: We’ll protect your First Amendment rights by assuring you that you can post state-approved messages.
I expect the bakery will appeal this ruling to the Colorado supreme court and, ultimately, perhaps even to the U.S. Supreme Court. (Full disclosure: The Alliance Defending Freedom represents Phillips. I’m a former senior counsel at ADF and still speak at ADF events.)
One hopes that higher courts will show less bias, but I can’t help but think that Justice Kennedy and the four liberal automatons will eventually hold that bakeries “respond to the universal fear that a [hungry] person might call out only to find no one there” — or some such jiggery-pokery — and continue carving out the sexual-revolution exception to the First Amendment.
When newly fabricated rights to sexual liberty collide with free speech and religious liberty, sex always seems to win.
— David French is an attorney and a staff writer at National Review.