Recently, the Supreme Court heard oral arguments in a case that, in one sense, was probably inevitable in the wake of its decision in Obergefell v. Hodges, the case whose decision recognized a constitutional right to marriage equality. Jack Phillips, the proprietor of Masterpiece Cakeshop in Colorado, refused to make a wedding cake for a same-sex couple on the grounds that, as a Christian, he was spiritually opposed to their union and did not want to be force to do something that was tantamount to celebrating it.
In so doing, Phillips he relied on the First Amendment in two respects. He believes that making a wedding cake for a same-sex couple violates his right to free speech, by forcing him to communicate a message he would not freely choose to communicate on his own. He also believes that making such a cake violates his right to freely exercise his religion, by forcing him to participate in a inherently religious ceremony in which he would not freely choose on his own to participate.
It's not surprising that Phillips' cause has drawn a large number of supporters. Same-sex marriage may be the law of the land, but, as is also the case with the right to an abortion, which the Court recognized in Roe v. Wade, that doesn't prevent the law of the land from being highly divisive in the court of public opinion. However, not everyone in Phillips' camp is an opponent of marriage equality.
Take, for example, this recent article from the New York Daily News by two law professors, who filed a friend-of-the-court brief on Phillips' argument before the Supreme Court. In the article, the authors state their support for the Obergefell decision, but essentially agree with Phillips' First Amendment argument. Their support is based in part on what they see as an inconsistent position on the part of state regulators that permitted bakers to refuse to make cakes with Biblical quotes against homosexuality, but ruled against Phillips' refusal to serve the same-sex couple. They see this situation as one that involves a need for the Court to balance the rights on both sides, and that this balance could be struck with a "narrowly tailored" opinion--although it's worth noting that they do not specify what the narrow tailoring should look or sound like.
Perhaps it's just as well that they don't. Without questioning the sincerity of Phillips' position, his basic argument, upon closer examination, falls apart like a cake too quickly removed from the oven.
Let's start with the freedom-of-speech argument. Speech implies communication, which in turn implies a message. Phillips could have argued that any sale to the couple of any of his products for the purpose of celebrating their wedding would have required him to communicate a message he didn't wish to communicate. But he didn't do that. He offered to sell the couple anything else but a cake, without restricting how those other products could be used. He could, in fact, just as easily offered to bake them a cake with no actual wedding-related details--no writing at all, no same-sex couple as a "topper"--and Colorado officials would have accepted that, because there was no message, Biblical or otherwise. The couple, for that matter, could have gone out and added their own "topper" to communicate what the cake meant to them.
Likewise, the freedom of religion argument cannot be sustained under a more detailed analysis. To begin with, marriage is a civil institution, and not a religious one, one that predates the start of the Christian religion. It is this fundamental aspect of marriage that has always given the state the power to regulate it in the first place. In any event, the portion of a wedding that is religious in nature is the ceremony itself--in which the cake places no part. The cake is simply the focal point of the reception after the ceremony, in which any religious content is minimal or incidental in any case.
And, ultimately, to apply a little Gertrude Stein analysis to this, a cake is a cake. It conveys no message. It does not play an essential role in worship of a deity or observance of a faith. It is, fundamentally, an object in commerce, being made available to all comers through a business which Phillips has made open to the public and through which he was, in fact, willing to sell products to the same-sex couple even after he knew that fact about them, without any restrictions on how those other products could be used. In other words, Phillips' business is a public accommodation, subject to regulation by Title II of the Civil Rights Act of 1964, which requires that "[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation."
This puts Phillips, in my view, in the position of wanting to have the benefits of being a public accommodation--i.e., maximizing his profits and income, which he has every right to do--but nevertheless using that business to promote a message that even he concedes is against public policy and the law of the land. As it is, he has responded in the context of his business to the controversy by no longer making wedding cakes.
This seems to me to be sadly unnecessary. Why not just make wedding-style cakes that can be used for a variety of occasions, whether they are marriages or not? Let the purchaser decide how the cake is to be used, and whether any additional "message" needs to be added to it. As noted here in another Daily News article about the case, once the cake leaves the business, the maker/seller ceases to have any right of control over how it is used.
I am sadly left with the view that Phillips, or someone backing him, wants the lawsuit more than he wants an accommodation like the one the law professors suggest that this situation needs. They want a decision by the highest court in the land that will help, incrementally, to chip away at the right recognized in the Obergefell case. Sadly, that attitude is of a piece with the overall state of our nation. No one seeks to reconcile their differences for the sake of forming a more perfect union. They would rather use those differences as instruments of oppression. We are all guilty of this, to some degree, but we seem to have no way out of the dilemma we've created for ourselves. All we can agree on here, apparently, is that a cake is more than a cake. And that does not speak well for the future of what may soon be the formerly United States.
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