My ruling on the cake question
Owing, I suppose, to my previous intellectual and moral triumphs, I’ve been asked to cast the deciding vote in the current cake question. Should we the collective allow a cake maker to refuse the production and sale of a cake that contradicts his religious beliefs? Which principle should here be ascendant: the guarantee of equal rights to goods sold on the public market; or the guarantee of free speech and freedom of religion? To what degree are these three important rights called into play in this case?
From the cake maker’s point of view, a wedding cake emblazoned with the names of two men instead of a man and a woman is a message they cannot support. Their reading of the Christian Bible considers marriage a sacred bond between a man and woman, who upon marriage cleave to one another and become one flesh in order to better support each other and found and raise a family, in accordance with God’s plan for humanity. Homosexuality, again from the cake company’s understanding of Christian teachings, is a grave sin, that should be fought against like other sins, not celebrated. Therefore, making a beautiful wedding cake decorated for a man on man marriage is a perversion of what they believe their wedding cakes should do, which is to celebrate what God has brought together. (or so I’d picture the argument [turns out that picture of thins was incorrect; see “Dang!” section below the author’s name to explain how this essay fights a straw man!])
Of course, It seems likely that many marriages they’ve provided cakes for have not rigorously followed the cake maker’s understanding of a Christian marriage, but they can’t review the religious merits of each wedding that wants a cake from them, and this cake with two men’s names side by side just goes too far: it sends a clear message that is contrary to their own feelings on the matter, and they don’t feel it reasonable to force them to put their talent, their artistic elan, their creative vigor, their raw materials into a message that they believe is wrong. [Are there cake makers out there who–citing KJV Matthew 5:32: “But I say unto you, That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery.” and/or NIV Mattthew 5:32 “But I tell you that anyone who divorces his wife, except for
marital unfaithfulness, causes her to become an adulteress, and anyone who marries the divorced woman commits adultery.”–demand proof that the wedding in question is for both parties the original one? Perhaps, but that’s not the topic of this essay.]
From the cake purchaser’s point of view, they are being discrimated against. This is a public business and they were quite willing to pay for the good they desired. It is immaterial that the cake maker offered to make them other cakes that did not have to do with their wedding, and it is also besides the point that they did not live in an area where there were no other wedding cakes available, that indeed another company, outraged by defendant’s decision, gave them a free wedding cake (ConstitutionCenter.Org). The point is that they went into a public place of business, regulated by the law of the land, they requested that that company provide them with a service that company regularly performs for other law-abiding citizens, they offered their money, and they were turned down. They were discriminated against, and should be protected by Colorado’s anti-discrimination laws, and they have no choice but to try to right the injustice, which is why they are here today, standing before us in the Supreme Court of the United States of America. (or, again, this is the image I see before me)
How should I rule? Where do I come down? Hmmmm. The way I see it, I have a few options: I could rule that the cake maker has to sell them a cake decorated any way they decide, that the cake maker has to sell them a generic cake but with no decorations specific to the homosexual nature of their union (example: it has all the frill and flowers, and maybe even some mention of marriage, but no discussion of who is getting married), or that the cake maker doesn’t have to sell them a wedding-style cake at all. My justification for the first case would be that key issue is that businesses on the public market have no right to discriminate against would-be customers; to support the second position, I’d argue that anti-discrimination demands that the business sell the couple a generic cake, but freedom of speech means they don’t have to decorate it in a way that contradicts their beliefs; to argue the third position, I’d hold that no matter what the cake says, it is a work of art that clearly celebrates marriage (by its basic structure and our shared cultural understanding of that structure), and so having to sell the cake for a wedding they consider immoral violates the cake maker’s freedom of speech because it forces them to celebrate what they do not think is ethical to celebrate, and it violates their freedom of religion by forcing them to bow down to secularism, which is just as much a metaphysical position as any other position about how one should really think and act. I think both the fact that wedding cakes could easily be obtained elsewhere and the fact that they are not essential goods are relevant. In no case would I justify the cake maker’s actions by invoking an individual’s right over their own property: this is a public company, and we can’t have anybody in any case refusing to serve another person just by claiming that serving that other person violates their rights to decide what they do with their private property. If that argument is allowed, it is hardly even a slippery slope before racists are allowed to refuse to sell groceries to people of other races, and etc–things clearly unconstitutional because such decisions would allow one individual to deprive another of their basic right to care for themselves within the public space where individuals must meet and government must insure justice.
I would like to call forward two other sets of legal combatants: a racist cake maker versus a biracial couple’s request for a wedding cake topped with their names and with a model of a black person dancing with a white one, dressed in wedding outfits, and sharing that unique bliss of settling for life into another person, wedding your world to theirs; & a liberal cake maker versus a pro-Trump, anti-immigrant organization’s request for a birthday cake topped with a picture of a border wall stopping dark-skinned people, Trumps’ head smiling transcendent over the wall, and some inscription to the effect of “This is our country! Go back to where you came from!” along the bottom.
Of course, I need to also consider the option that the cake maker could be forced to make a generic cake, but that it would be widely known the kind of celebration the cake would celebrate, and that somehow it would be reasonable to surmise that the cake would ultimately be finalized with the decorations I’ve outlined. In the case of the biracial couple, such a decoration follows naturally from everyone’s understanding of a three-tiered, frilled and flowered cake (ie: it is for the celebration of a wedding). In the case of the birthday party, we’ll have to assume the information about the decorating motif will came from previous parties held by the organization, and/or by the fact that the organization requested some very particular cake along the lines of the one just sketched.
The racist cake maker argues that they don’t think white and black people should marry, since they are not fundamentally compatible and their union is therefore contrary to the peace, stability, and prosperity of the nation, and that since this is their view, they shouldn’t have to support the message that this wedding is a beautiful event. The liberal cake maker argues that they don’t agree with Trump’s immigration policies, that they think the message of the cake is racist and celebrating such a message and Trump’s presidency is exactly the opposite message they want to deliver. In all cases, the cake makers claim that cake making is an art and that they work hard to make cakes that are both aesthetically and culinarily beautiful and don’t think the government should be allowed to tell them what message they pair with this beauty.
What to do? What to do? Do I need to factor in the legitimacy of the various parties’s positions? How would I do that? To my mind, the conservative Christian cake maker and the liberal cake maker both voice viewpoints founded on ethical positions that a current US citizen may or may not agree with, but that we can all agree have many proponents and represent a current theological argument with some Biblical support; whereas the racist cake maker’s position is completely outdated, the theological grounds for it absurdly weak and not even kind of current within contemporary US Christianity, and the intellectual grounds completely undermined by common sense experience of black people and white people sharing all kinds of things quite effectively, including marriages. Finally, I think that “This is our country!” cake is clearly mean and unhelpful, and could–if the cake-maker wanted to claim religious freedom in their rejection of the project–easily be theologically contested with, for example, the still very current Luke 10:25-37. But does how current and reasonable the theological arguments are come into play here? Or do I need to just consider the general principle: that a cake can be considered artsy speech and the way it is decorated a message, and that therefore these three hypothetical cases are all functionally equivalent?
As a political liberal and a theological Something Deeperist, I strongly support both the biracial and the homosexual wedding cake, and I strongly dissent from the Trumpian anti-immigration cake. I think that opposition to the biracial cake is just plain stupid and wrong and ridiculous. I consider opposition to the homosexual cake ultimately a misdirected rebellion that sticks up for a theological point that the deepest religion does not consider material at the expense of a full-embrace of the most important theological point (be kind to everyone; don’t worry about the small things, focus instead on the Love between God and you and between God, you, and everyone else; excessive literalism shifts your focus onto ideas and feelings about meaningfulness and away from that whole-being engagement with the Light within that alone knows what is truly meaningful, so avoid excessive literalism), but I have some sympathy for the cake maker’s wish to avoid assenting to a message he is religiously opposed to, and I recognize the topic debated is still a theologically current one for many US Americans. Finally, I cannot fathom how the anti-immigrant cake does anything but celebrate fear, hate, and a never-ending cycle of ever-growing lonely desperate boredom. But that’s just my feelings about the issues involved. I’m supposed to be a humanly-impartial judge, finding a constitutional solution to these questions, which means I’m to ask myself if these are legitimate free speech cases, or if the defendants are just finding an excuse to discriminate against the plaintiffs.
I’m not sure. I guess I’ll rule that they have to all provide generic cakes, but are not obligated to make any issue-specific decorations. My reasoning is that calling a generic cake, be it three-tier or large square, a “work of art” and/or a “statement” is an overstatement, that while those shapes and the standard embellishments (rings of frosting on the edges, flowers) lead to certain assumptions about the cakes, merely providing those generic shapes and flourishes does not constitute a serious statement about the legitimacy of the celebration the cake will be used for; due to these considerations, I think a citizen’s right to receive goods and services without companies turning them away due to their race, religion, politics, sexual orientation, or etc (whatever all is protected by their state’s anti-discrimination laws: Colorado Public Accommodation Laws ) trumps any claim of freedom of speech or religion. However, a specialized cake decoration–beyond what is provided to all purchaser’s of a basic type of cake–could be construed a statement, so a cake maker’s refusal to garnish the cake with a customized message could be protected under the first amendment (which both guarantees the right to free speech and the prohibits religious laws [First Amendment ]). Furthermore, the decoration you get on a cake is far from an essential service, and most everywhere you can find a private person and/or a company to decorate your cake however you choose. Therefore, I rule it unwarranted for the state to step in and demand a cake maker decorate a cake in some specific way that comments on how worthy of celebration a given event is.
So that’s my ruling: you have to sell them a three-tiered cake with frills and flowers, but you don’t have to decorate it with their names or with two men dancing with each other or anything like that. Since it is not standard for wedding cakes to be emblazoned with some generic statement about weddings, the cake maker also is not obligated to write anything about weddings on the cake. If the anti-immigration cake orderers demanded a frosted “Happy Birthday”, the matter would be a bit trickier, because birthday cakes always say that, but if we make the cake maker write that, it looks like perhaps we are forcing the cake decorator to celebrate the birthday the cake is for, and since everyone knows what birthday it is, one might decide the cake maker was being forced to make a statement about the birthday in question. However, ultimately I disagree with that reasoning: “Happy Birthday” is a generic statement for birthday cakes, and as long as the cake maker doesn’t have to say any more (like name the organization who’s birthday it is), the cake maker has been forced to provide a generic good, not forced to create a statement about the worthiness of some event and the ideas within it.
To me, however the judges rule, the main thing we as citizens should keep in mind is that this is not a completely obvious matter. Furthermore, it is probably not a huge deal. The big deal is whether or not the state protects everyone’s right to find their way to greater and greater and ever greater insight into the question of how it is True that what we say and do and what happens to us truly does matter, and how it is True that we really are all in this together and must be first and foremost kind and respectful with and open to one another. It is only insofar as they are ratified and illuminated by the Light within that calls us all “worth respecting, loving, and helping” that any of our ideas and feelings can be meaningful/believable/interesting to us human things. Therefore, the only way forward is to share that dogma (we are all in this together, but wisdom is not merely voicing words to that effect, but finding a whole-being insight into that and how we really are all in this together) and admit we share it and therefore have shared goals and boundaries–a shared Reality where we can work together to responsibly use our shared resources, of which the government, its principles, structures, and laws, are an important part. Freedom of speech, the separation of church and state, and anti-discrimination laws are all important aids in our endeavor to create a society in which we each relate to the Law within in a way that is meaningful to us and work together to make and enforce laws based on what find in this inward-seeking.
There are non-crazy arguments on both sides of this cake issue, so there is no reason to suppose the court’s ruling is an attack on you. It can be interpreted as an attempt to settle a question that pits opposing rights (right to publicly available products; right to freedom of speech and right to follow your conscious and convictions) against one another, meaning there can be no obvious resolution. We citizens must choose our battles. It is fine that some people wanted to test this question, but it is a quite specific case, and we needn’t start inferring broad interpretations from it. In general, we the people need to calm down and keep our main focus on being the last check on corruption and clearcut folly in the government. We have to find a way to constructively argue the details of government (specific policies, laws, regulations, politicians, and etc) while remaining cohesive in our stand against clear cases of corruption and folly. But we’ve gotten so partisan and so muddled, that we cannot, for example, together address the influence of money in our political process or together support the ability of a respected independent bipartisanally-appointed investigator to look into the very serious question of a foreign government’s malicious influence on our elections and what, if anything, the various members of our current administration did to encourage that foreign government’s influence in the very election that got them into government.
Author: AB CdEfghiz
Editor: B Willard
Copyright: AM Watson
Afternote: Dang!
It seems that my ruling is not completely germane, since the baker refused to provide any cake at all for the wedding, and Colorado’s law does not say they have to write anything he doesn’t want to write on it. http://www.nybooks.com/articles/2017/12/07/let-them-buy-gay-wedding-cakes/
So my synopsis of the position was not even correct. I thought what they couldn’t stand was to write two men’s names next to each other and put two men in tuxes dancing together on the top of the cake. He could argue that someone was likely to add those items to his cake, and he doesn’t want anything to do with the message that sends, but that doesn’t seem to be free speech to me–if I’m a liberal paper seller, and you are a conservative newspaper, can I refuse to sell you paper? It comes down to how much a generic three-tier trim-and-roses wedding cake is art and speech, and I don’t think it is enough of either to trump Colorado’s anti-discrimination laws.
Well, anyway