Friday, September 8, 2017

The United States' brief in Masterpiece Cakeshop v. Colorado

Donald Trump
We should all be outraged that Trump took sides in an important civil rights controversy. Earlier in the term he left in place an executive order requiring government contractors not to discriminate. Since then, however, it has been all downhill.

In its amicus brief the government has focused primarily on the concept of compelled speech. They embellish this with the concept that Phillips artistic expression is comparable to that of a poet. They actually write something to the effect that the government cannot force a poet to write a poem. Know any poets who are public accommodations?

But where I think the government really fails is here:
As the designer and creator of the wedding cake, Phillips believes that he is an “important part of the wedding celebration for the couple” and is “associated with the event.” Pet. App. 280a. He further believes that a wedding cake is a symbol conveying a message that a marriage has begun and should be celebrated. Ibid. Given that understanding of his work, Phillips will not design and create a custom wedding cake for a celebration of a union that conflicts with his religious beliefs. Id. at 287a-288a. 1 He believes that to create a wedding cake celebrating a marriage that directly contradicts his religious convictions would be “a personal endorsement and participation in [a] ceremony and relationship” that he does not condone. Id. at 288a (emphasis omitted).
Phillips may believe that he is important but that is a self-aggrandizing and arrogant perspective. No one attending the ceremony is likely to care who baked the cake. More importantly, Phillips concern for how his product is used is unreasonable and its application seems to be exclusively reserved for gay couples. It begs the usual questions. Has Phillips declined to bake wedding cakes if a wife is pregnant? Is he asking questions of prospective customers about previous marriages and divorces. I am sure as hell no biblical expert but I am informed that scripture is far harsher on divorce than it is on gay people. Suppose Phillips objected to the marriage of a Jewish man to a Christian woman? Could he refuse service?

Obviously there is much more to the brief but compelled speech (if in fact that is what this is) has to be unreasonable to insult the First Amendment. In other words, a public school can insist that students refer to personnel by Mr. or Ms. That is certainly compelled speech but there is no legal controversy.

Refusing to bake a cake is really a way of demonstrating disapproval. The refusing baker is certainly not going to cause the wedding to be canceled. His refusal has no practical effect on the nuptials. To me it seems petty and an example of someone taking themselves way too seriously. The couple in this case found another baker but that is irrelevant. They still suffered the sting of having been discriminated against.

If Phillips' god is as powerful and omniscient as these people claim then he or she knows that the baker is serving the couple to be in compliance with the law. No harm. No foul. I think that falls under the category of: Render unto Caesar the things that are Caesar's, and unto God the things that are God's. Take a few steps back and this all seems rather silly. It is a case that the Court should never have agreed to hear.

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