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Left, Right, and Center Pick Apart Cakeshop Case

Masterpiece Cakeshop Case
From left: Baker Jack Phillips and gay couple Charlie Craig and David Mullins

SCOTUS will decide if Christian baker Jack Phillips had a right to discriminate against a male couple in 2012, but pundits have already weighed in.

The Supreme Court will hear arguments beginning Tuesday in the case of Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, the roots of which began in 2012 when Lakewood-based baker Jack Phillips, citing religious reasons, refused to make a wedding cake for a gay couple, David Mullins and Charlie Craig.

A Colorado judge determined in late 2013 that the baker had violated a state law that prohibits businesses from refusing service due to a person's sexual orientation. Phillips appealed the decision, arguing that cake decorating is his "creative expression," and the case went on to wend its way through the courts until it made it to the highest in the land.

The case has been likened to a landmark 1968 civil rights case, Newman v. Piggie Park Enterprises, in which the owner of a South Carolina barbecue restaurant refused to serve people of color based on his religious beliefs. The courts sided with the plaintiff, and the case laid the groundwork for discrimination suits to follow.

"The logic of Piggie Park and other precedents overwhelmingly rejecting religious justifications for racial discrimination apply squarely to the context of LGBTQ discrimination," the NAACP Legal Defense and Educational Fund said in a Supreme Court brief.

While Masterpiece Cakeshop's owner refusing to bake a cake for a gay couple would appear to be a clear case of discrimination, there are those on the right and left who view it differently.

The Right

George Will for National Review:

"A cake can be a medium for creativity; hence, in some not-too-expansive sense, it can be food for thought. However, it certainly, and primarily, is food. And the creator's involvement with it ends when he sends it away to those who consume it. Phillips ought to lose this case. But Craig and Mullins, who sought his punishment, have behaved abominably."

"Denver has many bakers who, not having Phillips' scruples, would have unhesitatingly supplied the cake they desired. So, it was not necessary for Craig's and Mullins' satisfaction as consumers to submit Phillips to government coercion. Evidently, however, it was necessary for their satisfaction as asserters of their rights as a same-sex couple."

David French responding in National Review to Will's piece:

"In ordinary circumstances, the artistry of cake designers is so obvious that it's presumed -- the same with photographers, calligraphers, and florists. This obvious artistry is a reason why no one bats an eye when a baker refuses to design, say, a Confederate-flag cake. The message it is sending is staring you in the face. But a message may be implicit instead, present though not obvious, even if the artistry is. For example, does anyone believe that the prohibitions against sex discrimination would compel a fashion designer to create a dress for Melania or Ivanka Trump?"

"There is no slippery slope between Masterpiece Cakeshop and segregated lunch counters. There is no ambiguity as to whether the design of the cake in this case communicated a message. The Supreme Court can, in fact, rule in favor of Jack Phillips without doing the slightest bit of harm to generations of civil-rights case law. In fact, it can explicitly reaffirm its rulings in those cases at the same time that it defends free speech. It's that simple."

Michael Brown equating hate speech with equal rights for Townhall:

"Should a gay baker be required by law to design a cake with the message, "God hates fags"? Should an African American t-shirt maker be required by law to design a t-shirt saying, "Long live the KKK?" Should a Muslim caterer be required by law to provide pork for a secular event? Should a Jewish photographer be required to shoot a wedding on the Sabbath? The answer to all these questions is: Of course not. Why, then, should a Christian baker be required by law to design a cake celebrating the 'wedding' of two women (or men)?"

"Put another way, you can freely exercise your Christian beliefs unless those beliefs offend gays. In that case, you're breaking the law. And what if a Hindu came in and wanted a, 'Krishna is Lord' cake? Phillips could politely decline, without legal penalty or pressure. The same with a Muslim baker declining to bake a cake for a Christian with the words, 'Jesus is Lord.'But wouldn't that offend the Hindu and the Christian wanting to buy the cakes? Perhaps so, but the bakers are rightly protected by the law and cannot be penalized for refusing the business."

"Why, then, are gays and lesbians treated differently? Why are they put in a special category? The sympathetic answer would be that society has overcompensated for perceived past injustices. And so, the pendulum has swung from one side (mistreatment of gays and lesbians) to the other side (overprotection of gays and lesbians)."

The Middle

Greg Weiner for The Washington Post:

"The court will hear arguments Tuesday for a case that illustrates this perfectly. It involves a baker who refused on religious grounds to produce a cake for a gay couple's wedding reception. The dispute has been described as a landmark test of LGBT rights. It is also being heralded as a moment to protect religious liberty. But in reality, this case is testing the limits of the courts' ability to resolve social disputes. No matter which party prevails, there is no winning scenario."

"Left to the political process -- or even better, to informal mechanisms of society -- the conflict almost certainly could be resolved without forcing a choice between anti-discrimination laws and religious freedom. Surely no one believes same-sex couples actually want the services of a baker they consider a bigot hostile to their rights. The object of the case is not to secure Masterpiece Cakeshop's services. It is to dragoon its owner, Jack C. Phillips, into compliance with their views."

"The problem is that Phillips can't be forced to agree with those views. He can only be made to deliver a cake, but that outcome would almost surely set the lesbian, gay, bisexual and transgender rights movement back by stoking resentment from its opponents. That is exactly what happened in the late 1990s and early 2000s, when court rulings sparked a wave of state constitutional amendments defining marriage heterosexually."

The Left

Jennifer Finney Boylan for The New York Times:

"No one valuing our Constitution could reasonably oppose religious freedom, and as a person with a strong Christian faith of my own, I'm grateful for the ways in which the practice of my beliefs is protected by the First Amendment. But Masterpiece has nothing to do with religious freedom. It's about enshrining a freedom to discriminate. Historically, religious exemptions from the law have occasionally been granted to protect the person who holds the belief. But this case is different, in that it gives an individual the right to harm someone else. And that's what the Masterpiece case is about: It would give individuals the right to discriminate."

"It's about landlords who could legally refuse to rent to someone because of who they are. It's about adoption agencies that could legally deny individuals and couples the right to have a family. It's about doctors who could legally refuse services to gay men and lesbians, or their children. It's about medical clinics that could refuse service to people who are H.I.V. positive. It's about pharmacies that could legally deny birth control to single mothers or to anyone whose relationship the pharmacist might disapprove of."

Sarah Jones for The New Republic:

"But if the court concedes to Phillips, it will erode an already-spotty system of anti-discrimination protections. LGBT people aren't a federally protected class: Their safety from discrimination in public places relies on local and state anti-discrimination provisions that conservative Christians have challenged, without much success, for years. Without these protections, same-sex couples could still get married--but their ability to access that right in an equal fashion will suffer. It would be a serious setback for LGBT people, and a major victory for the Alliance Defending Freedom, a far-right Christian legal group that represents Phillips and has worked for years to oppose same-sex marriage rights."

"Wedding vendors don't run ministries. They run businesses that are open to the public. And while business owners do have some legal flexibility over who they do or do not serve, this isn't a matter of no shoes, no shirt, no service. The action Jack Phillips wants to take is morally equivalent to rejecting a customer because they're blind or female or black. It doesn't mean very much if Phillips allows a queer person to buy a birthday cake; the queer person has to hide any public evidence of his queerness in order to receive service. What Phillips wants is for the law to weight his personal beliefs about a person's intrinsic identity above that person's right to access a business."

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Tracy E. Gilchrist