Law & the Courts

This Is a Fight for the First Amendment, Not against Gay Marriage

Masterpiece Cakeshop owner Jack Phillips (Photo: ADF/YouTube)
No, the Supreme Court is not revisiting gay rights.

This week, the Supreme Court agreed to hear the case of Masterpiece Cakeshop owner Jack Phillips, the man who refused to create a specialty wedding cake for a same-sex couple in Colorado in 2012. The stories that are dominating the coverage distort the public’s understanding of the case and its serious implications.

For one thing, no matter how many times people repeat it, the case isn’t about discrimination or challenging gay marriage. But when the news first broke, USA Today tweeted, “The Supreme Court has agreed to reopen the national debate over same-sex marriage.” The headline (like the story) on the website was worse; it read, “Supreme Court will hear religious liberty challenge to gay weddings.” Others similarly framed the case. (And don’t worry, “religious liberty” is almost always solidly ensconced inside quotation marks to indicate that social conservatives are just using it as a façade.)

There is an impulse to frame every issue as a clash between the tolerant and the closed-minded. But the Masterpiece case doesn’t challenge, undermine, or relitigate same-sex marriage in America. Gay marriage wasn’t even legal in Colorado when this incident occurred.

Therefore, the Associated Press’s headline, “Supreme Court to Decide If Baker Can Refuse Gay Couple Wedding Cake,” and the accompanying story are also wrong. As is the New York Times headline “Justices to Hear Case on Baker’s Refusal to Serve Gay Couple,” which was later changed to the even worse headline “Justices to Hear Case on Religious Objections to Same-Sex Marriage.”

A person with only passing interest in this case might be led to believe that Phillips is fighting to hang a “No Gays Allowed” sign in his shop. In truth, he never refused to serve a gay couple. He didn’t even really refuse to sell David Mullins and Charlie Craig a wedding cake. They could have bought without incident. Everything in his shop was available to gays and straights and anyone else who walked in his door. What Phillips did was refuse to use his skills to design and bake a unique cake for a gay wedding. Phillips didn’t query about anyone’s sexual orientation. It was the Colorado Civil Rights Commission that took it upon itself to peer into Phillips’s soul, indict him, and destroy his business over a thought crime.

Like many other bakers, florists, photographers, and musicians — and millions of other Christians — Phillips holds genuine longstanding religious convictions. If Mullins and Craig had demanded that Phillips create an erotic-themed cake, the baker would have similarly refused for religious reasons, just as he had with other customers. If a couple had asked him to design a specialty cake that read “Congrats on the abortion, Jenny!” I’m certain he would have refused them as well, even though abortions are legal. It’s not the people; it’s the message.

In its tortured decision, the Colorado Court of Appeals admitted as much, contending that while Phillips didn’t overtly discriminate against the couple, “the act of same-sex marriage is closely correlated to Craig’s and Mullins’s sexual orientation,” so it could divine his real intentions.

The state can substantially burden a Christian because he’s hurt the wrong person’s feelings.

In other words, the threshold for denying religious liberty and free expression is the presence of advocacy or a political opinion that conflates with faith. The court has effectively tasked itself with determining when religion is allowed to matter to you. Or, in other words, if SCOTUS upholds the lower-court ruling, it will empower unelected civil-rights commissions — which are typically stacked with hard-left authoritarians — to decide when your religious actions are appropriate.

How could any honest person believe this was the Constitution’s intent? There was a time, I’m told, when the state wouldn’t substantially burden religious exercise and would use the least restrictive means to further compelling interests. Today, the state can substantially burden a Christian because he’s hurt the wrong person’s feelings.

Judging from the e-mails and social-media reactions I’ve gotten regarding this case, people are instinctively antagonistic not only because of the players involved but also because they don’t understand the facts. In this era of identity politics, some have been programmed to reflexively side with the person making accusations of status-based discrimination, all in an effort to empower the state to coerce a minority of people to see the world their way.

Well, not all people. In 2014, a Christian activist named William Jack went to a Colorado bakery and requested two cakes in the shape of a Bible, one to be decorated with the Bible verses “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22,” and the other cake to be decorated with another passage. The bakery refused. Even though Christians are a protected group, the Colorado Civil Rights Division threw out the case. The American Civil Liberties Union called the passages “obscenities.” I guess the Bible doesn’t “correlate” closely enough with a Christian’s identity.

Or perhaps we’ve finally established a state religion in this country: one run on the dogma of “social justice.”


Three Thoughts on the Masterpiece Cakeshop Cert Grant

The Supreme Court’s Religious-Freedom Message: There Are No Second-Class Citizens

Legal Radicals Don’t Want the ‘Separation of Church and State’

David Harsanyi is a senior editor of the Federalist and the author of First Freedom: A Ride through America’s Enduring History with the Gun, From the Revolution to Today

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