Monday, September 25, 2017

Faith, Wedding Cakes, and the Rule of Law

By Eric Segall

Everyone in the United States may worship their own God, multiple Gods, or no God at all.  We have the right to believe anything we want without fear of government reprisal.  We also generally may refuse to communicate government messages with which we disagree (warnings on dangerous products are an exception to that rule). We are also, in the majestic words of the great Chief Justice John Marshall, “a government of laws not men.” This term the Supreme Court is hearing an important case implicating these fundamental principles.

Jack Phillips is the co-owner of Masterpiece Cakeshop.  Although he sells his baked goods to gays and lesbians, he will not make them wedding cakes because doing so is against his religious conscience. This refusal violates Colorado law which requires for-profit businesses to serve all customers regardless of sexual orientation. Phillips seeks refuge in the free speech and free exercise clauses of the first amendment to the United States Constitution which, in cases of true conflict, trump Colorado law. He lost in the courts below.

Colorado takes the position in the litigation that for-profit-businesses do not have to provide specific messages on their products. If Mr. Phillips had been asked by the plaintiffs to place a symbol or letters on the cake with an affirmative same-sex marriage message, the case would, in the words of Colorado, “present a different record and raise different issues.”

We don't know what the couple wanted from Mr. Phillips because he told them that he would not provide them any wedding cake, regardless of the design of the cake. The judge in the administrative proceedings found the following: “The undisputed evidence is that Phillips categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what that cake would look like. Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage.” 

The couple did eventually have a cake with a rainbow symbolizing gay pride, but we don't know if they would have accepted a wedding cake without any message from Mr. Phillips because he never offered such a cake. As I've written before, because we don't know that fact, and because the simple act of providing a wedding cake without a message should not receive first amendment protection, Mr. Phillips should not prevail on his free speech claims which should either be rejected or remanded for further consideration.

As to his religion claims, nothing in Colorado law prevents Mr. Phillips from praying, worshiping, attending church, or engaging in any religious ceremony or ritual that he deems necessary to exercise his religion. Nevertheless, he claims that he cannot fully carry out his faith if he is required by law to sell his wares to same-sex couples getting married. Mr. Phillips also refuses to bake cakes for Halloween parties, or sell any products that celebrate racism, atheism, anti-family values or contain profane messages.

Mr. Phillips is of course allowed to believe that supporting same-sex weddings violates his faith. But as a legal matter, that claim needs to be unpacked if it is to be used to authorize him to violate Colorado law.

Mr. Phillips publicly holds himself out as a devout Christian. The Bible says nothing, not a word, about same-sex marriage. Some people argue that the Bible does denote homosexuality a sin, but this case does not raise that issue because Mr. Phillips is willing to and has served gay and lesbian customers without objection.

Selling products to customers does not, in the ordinary sense, implicate religious exercise. Muslim car dealers sell cars to Christians without implicating faith. Similarly, Catholic owners of jewelry stores sell rings and bracelets to non-Catholic customers. We would condemn religious owners of for-profit companies for refusing to serve people of different faiths and, in the face of state law prohibiting such discrimination, the federal Constitution would not provide a license to do so.

It does not appear that Mr. Phillips asks potential customers if they engaged in sexual relations before marriage, if they plan to have children, or even what faith they practice, if any.  A fair question in this case is why his faith requires him to single out same-sex couples for special treatment.

Colorado's non-discrimination law is intended to further the dignity and equality of its citizens, certainly laudable and compelling purposes. Mr. Phillips' objection to selling his custom wedding cakes to same-sex couples substantially undermines these goals. The bare recitation that his conscience is offended, without more, should not justify allowing him to avoid the requirements of secular law.

Courts should and will accept the sincerity of Mr. Phillips' claim that selling wedding cakes to same-sex couples violates his faith. Courts would also accept someone’s claim that selling wedding cakes to redheads or professional athletes violates his or her faith. But accepting the sincerity of those kinds of claims does not give them preferred legal status or transform them into shields to secular laws that have nothing to do with religion.

We can be a country of religious freedom and one governed by the rule of law. Colorado's anti-discrimination statute has nothing to do with faith, not even a little bit. Mr. Phillips does not have to comply with that law when he is engaging in prayer, religious rituals, or attending church. But when he is running his for-profit business he should have to comply with secular law. The best way to prevent our government from interfering with religious liberty is to keep the faith world and the world of profit separate. Mr. Phillips should lose his case to further both the rule of law and religious freedom.