Forgive me for starting a piece with the oldest cliché in the practice of law. As the saying goes, “If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither are on your side, pound on the table.” In the run-up to the oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission on December 5, we’re seeing a lot of table-pounding from the Left. In fact, I’ve never seen a case more mischaracterized in my entire legal career.
The actual facts of the case are crystal clear. Jack Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to help celebrate a gay wedding. As a Christian, he finds same-sex unions to be unbiblical and immoral, and he wasn’t willing to use his artistic talents to advance a message he holds to be wrong. In fact, he’d frequently declined to design cakes that advanced messages he found to be offensive. But he never, ever — not once — discriminated against any customers on the basis of their identity. He baked cakes for people of all races, creeds, colors, and sexual orientations.
So why do so many on the left compare him to segregationists? Why do they use hypotheticals that have nothing to do with the facts of this case? Today the New York Times published a perfect example of pound-on-the-table misrepresentations. It’s by Barnard College professor and Times contributor Jennifer Finney Boylan. How does she distort the case? Let us count the ways.
She begins of course by comparing Phillips to the owner of a restaurant who claimed a religious justification for denying service to African Americans. Then she compares him to a doctor who wouldn’t care for a lesbian couple’s baby. She talks about landlords, clinics, and other businesses — all of which could deny services to people “because of who they are.”
She quotes a law professor (because of course law professors aren’t above misrepresenting cases) as saying, “We’ve never allowed a commercial business to justify discrimination against a protected class based on the First Amendment. We shouldn’t start now.”
Here’s the thing — if the court rules for Phillips, it wouldn’t be starting now. Phillips isn’t discriminating against a protected class. I’ll repeat this until I’m blue in the face. He serves gay customers.
If a black baker refuses a white customer’s request to design a Confederate-flag cake, he’s not discriminating on the basis of race. He’s refusing to advance a message.
If a police officer’s wife refuses a black customer’s request to design a cake celebrating Assata Shakur, a convicted cop-killer and one of the FBI’s most-wanted terrorists, she’s not discriminating on the basis of race. She’s refusing to advance a message.
I could go on all day. If progressive designers refuse to design dresses for the Trump women, they’re not discriminating on the basis of sex. They’re refusing to elevate and help honor a political family they dislike.
To the extent that Boylan engages with Phillips’s actual argument, she waves it away with a paragraph so specious that one has to read it to believe it:
Mr. Phillips certainly makes nice-looking cakes. But I’m not sure I’d call them artistic expressions, at least not in the same sense as, say, Joyce’s “Ulysses.” That argument demands that the court get into the business of defining art itself, a door the justices open at their peril. Is a well-manicured lawn a form of art by this definition? How about a lean corned beef sandwich? What would not be art if the court rules to protect icing and buttercream?
In this case, the complaining gay couple ultimately decided on a rainbow cake. Can Boylan not see that the cake clearly and unmistakably sent a specific message? There is a substantial difference between a rainbow symbol at an event celebrating a same-sex wedding and a corned-beef sandwich. Phillips isn’t comparing himself to Joyce, he’s making the painfully obvious point that there’s a viewpoint inherent in the expression his customers asked him to create — a viewpoint that a well-manicured lawn lacks.
Here’s the problem. If a writer squarely addresses the argument that Phillips actually makes, then she will soon run head-on to a sobering constitutional reality. Sexual revolutionaries are asking the Court to overturn generations of constitutional precedent to allow the state to compel American citizens to advance ideas they find reprehensible.
Boylan claims that Phillips is seeking special religious exemptions. To the contrary, sexual revolutionaries are seeking exemptions from the Constitution. They believe that same-sex marriage is so precious that even artists can be conscripted into the ceremony — despite their deeply held beliefs. They believe that the cost of entering the marketplace is not just the loss of your distinct artistic voice but the commandeering of that voice by your ideological foes to advance their ideological interests.
It’s worth noting that Boylan is at odds with Justice Kennedy, the likely swing vote in the case. Two years ago, in the Obergefell opinion, he wrote this:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
If Justice Kennedy holds to this view, then not only does the First Amendment win, nondiscrimination laws won’t lose. Phillips isn’t discriminating on the basis of sexual orientation. If Kennedy changes his mind, then he’ll erode vital American constitutional traditions and doctrines. The sexual revolution, not the Constitution, will be the supreme law of the land.