by Sarah Gompper
The case Charlie Craig and David Mullins v. Masterpiece Cakeshop was decided by the Colorado Court of Appeals on August 13th in favor of Craig and Mullins. As previously reported, the couple was denied service for their same-sex wedding in 2012 by Jack Phillips, the owner of Masterpiece Cakeshop. Colorado state law says businesses cannot discriminate on the basis of sexual orientation; thus, the Civil Rights Commission determined last year that Phillips had acted unlawfully.
Phillips then argued before the Colorado Court of Appeals last month that he had not discriminated against the couple on the basis of their sexual orientation, telling the court that he would have prepared them any cake but a wedding cake. He was acting in accord with his religious beliefs by not endorsing the couple’s act of getting married. Phillips also argued that regardless of the state law, his actions are protected speech under the First Amendment.
Neither of these arguments held in court.
The court ruled that Phillips did discriminate on the basis of sexual orientation because the act of marrying a person of the same sex is directly tied to sexual preference. It cited the recent Obergefell v. Hodges Supreme Court case for precedent. However, the ultimate question is of the constitutionality of the state law itself.
This is what the court got dreadfully wrong. To say a private businesses can’t discriminate deprives individuals of their right of free expression. The court decision states:
Masterpiece argues that wedding cakes inherently convey a celebratory message about marriage and, therefore, the Commission’s order unconstitutionally compels it to convey a celebratory message about same-sex marriage in conflict with its religious beliefs… We conclude that… such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections
This wrongly argues that, despite protections against government compelling speech, to bake a cake does not make a significant statement in favor of same-sex marriage, and therefore it is okay for the government to force the act. Needless to say, when the government decides what speech is important or significant enough to warrant protection, we do not have free speech at all.
Furthermore, the act of not baking the wedding cake was in and of itself an affirmative action and a form of speech. The act of refusing service made a statement that sparked outcry around the country. To argue that this form of speech was insignificant ignores the obvious impact Masterpiece Cakeshop had in a growing debate about discrimination and civil liberties.
“I think that the ruling is wrong. The Constitution guarantees me the right to practice my faith, my religion anywhere, anytime. There are no restrictions on it. It also gives me the right to free speech anytime, anywhere. I don’t surrender those rights when I open my doors” Phillips stated following the decision.
Phillips’s lawyer, Jeremy Tedesco of the Alliance Defending Freedom, said: “Jack simply exercised the long-cherished American freedom to decline to use his artistic talents to promote a message with which he disagrees. The court is wrong to deny Jack his fundamental freedoms.” They will consider further action going forward.
Craig and Mullins were represented in court by the American Civil Liberties Union, or ACLU. In describing the outcome of the case, the ACLU expressed opposition to expanded freedoms of expression and discrimination on the basis of religion:
[T]he First Amendment Defense Act, a bill introduced in Congress, would legalize discrimination in the name of religion by people all across the country. The bill was put on hold earlier this summer… But we expect it to come back this fall, and if the initial support it had from conservatives was any indication, we can bet it’s not going to die without a fight.
Make no mistake: That bill is this spring’s Indiana situation on steroids, and any elected official who watched Gov. Pence’s approval ratings plummet because of his support for discrimination should think twice about pushing this so-called religious liberty bill…
So far, though, equality is doing very well in the courts, which are refusing to expand religious liberty to the point that it would justify discrimination…
The “Indiana situation” to which the ACLU is referring was the public outlash in response to reiterated religious freedom in the state.
We conservatives are not villains. We do not support discrimination and we do not celebrate hate. However, we do stand in defense of the Bill of Rights, even when doing so goes against public opinion. We will continue to fight for the First Amendment no matter the consequences.
However, as of yet, defending the First Amendment is not unpopular. In fact, when asked if owners of wedding-related businesses should be able to refuse service to same-sex couples on the basis of religious freedom, a majority of Americans say they should.
According to Emily Ekins, a research fellow at Cato, “Just because the public thinks wedding-related business owners ought not be forced to serve same-sex couples doesn’t mean the public opposes same-sex marriage.”
The ACLU also asserts that “[s]ince the founding of our country, no church has been forced to marry any couple in violation of its religious doctrine and that will not change now that same-sex couples can marry,” and claims that “the ACLU would be the first to rise in defense of these religious institutions if government ever tried to do that.”
The ACLU is right to defend religious institutions from government overreach; however, it is wrong to assign churches special “right to discriminate” status. The First Amendment protects all expression, not just the expression of privileged organized religious organizations. The right of a private business owner to (not) serve whomever he or she pleases should be just as heavily protected as that of a church.
Our government, the same which has denied equality under the law to many people for many years, did not become righteous overnight in the wake of nationalized marriage equality. We must remain skeptical of government force and overreach even when we agree with the stance our government is taking.