Let Them Eat Cake…Or At Least Buy It First

Should one right be upheld at the expense of another?

Way back in 2012, the owner of Masterpiece Cakeshop in Colorado refused to make a wedding cake for a gay couple, David Mullins and Charlie Craig. The Supreme Court is expected to rule on this very soon.

Three other cases will heavily influence this decision:

Newman v. Piggie Park Enterprises, Inc., a 1968 ruling which included a footnote that called a restaurant owner’s claim that religious freedom gave him the right to refuse service to some African American customers “patently frivolous”;

Obergefell v. Hodges which made same-sex marriage legal in the U.S. in 2015;

And a nearly identical case:

Department of Fair Employment and Housing v. Cathy’s Creations, Inc., where a California judge ruled in favor of allowing a bakery owner to refuse to make a wedding cake for a gay couple on the basis of her religious beliefs.

How do you see this case?

One — The owner of Masterpiece Cakeshop should be able to refuse making a wedding cake for a couple whose sexual orientation defies the owner’s religious beliefs.

Two — The owner’s wedding cake service falls under the overall basic services of his operation, which means he must offer such service to every customer.

The bakery owner’s argument is that being forced to create something that amounts to “art”, via the personal expression that making a wedding cake represents, goes against his right to free speech.

“You have a view that a cake can be speech because it involves great skill and artistry. And I guess I’m wondering, if that’s the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side … versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?”

Supreme Court Justice Elena Kagan

And on the other side:

“Tolerance is essential in a free society…And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of [the bakery owner’s] religious beliefs.”

Supreme Court Justice Anthony Kennedy

Many questions involving the law are fairly cut and dry: Is it wrong to murder someone? A majority of people from most demographics would agree. There may be circumstances that mitigate the level of punishment we deem necessary, but everyone generally feels the same.

Cases involving our Bill of Rights often also fall into very binary right-or-wrong scenarios. However, things become murky as soon as more than one of those basic rights become intertwined. Those basic rights, guaranteed by the First Amendment, are freedom of speech, religion, petition, press and assembly. Further amendments to the Constitution provide for the right to bear arms, protect from unreasonable search and seizure, guarantee a fair trial by jury, and on and on. The 15th and 19th amendments, in particular, apply to cases such as the subject of this article: our citizens’ rights are not to be withheld due to their race, religion or gender.

In the Masterpiece Cakeshop case, freedom of religion and freedom of speech collide with those later amendments. One ruling conflicts with the First Amendment, while the other ruling would conflict with the 14th Amendment’s protection of citizens from having their basic rights restricted by a state.

National legal director at the ACLU David Cole said in a statement:

“A decision against Charlie and Dave would allow businesses across the country to argue that they too can refuse service based on who the customer is. As we argued in court today, the justices have an obligation to defend the principle of equal dignity under the law for all Americans — including Dave and Charlie.”

No matter whose side the Court ultimately rules in favor of, the implications are profound and could influence Constitutional law for years, if not decades. In one instance, the result forces someone to do something that violates one or more of their freedoms. In the other, a larger door is opened to allow more reasons for business owners to refuse service to segments of the population.

Both rulings have negative moral AND constitutional implications.

Perhaps law should be written to allow business owners this right of discrimination in specific circumstances based on other rights, so long as such discrimination is advertised publicly. While unsavory to all sides, this would allow people to make decisions on what businesses to support based on the businesses’ advertised policies. This transparency has the added bonus of not trampling any rights. Charlie and Dave would have been looking for bakeries and saw the notice that Masterpiece Cakeshop “chooses not to bake specifically for LGBTQ clients”, and they would have chosen to shop somewhere else.

One reader pointed out that if the bakery owner refused to do work for customers of a certain race (on the basis of freedom of religion and/or speech/expression) that the case would be laughed out of court. That is quite possible. In either circumstance, however, wouldn’t the potential customer rather know ahead of time where the business proprietor’s beliefs fell, so that they could choose to NOT shop there?

Is a lasting compromise even possible when rights collide?

Thank you for reading and sharing.

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