This article is a short summary of the oral arguments in Masterpiece Cakeshop, Ltd.  v. Colorado Civil Rights Commission, which was argued before the U.S. Supreme Court on December 5, 2017. For those who’ve been following the news, this is the “Christian cake baker case.” Oral arguments are an opportunity for both sides to defend their legal positions in person, and answer any questions the Justices have. The Supreme Court will rule on this case sometime in 2018.

In the article, I provide a few bits of commentary. But, this is primarily a summary.[1] Hopefully, it can spur each of on to consider the issue of soul liberty in the public square in these troubled times.

Baker’s Response (Kristen Waggoner, Alliance Defending Freedom)

Philipps’ objection is not with the people who want the cake, his attorney argued. Instead, the objection is the message it communicates. “The First Amendment prohibits the government from forcing people to express messages that their violate religious convictions,” (4:12-19). The back and forth centered on this point. What is “speech?” How do you separate the identity of the customer from the message the product communicates?

Ginsburg opened by asking about off the shelf products; would Philipps provide these to a same-sex couple (4:21-5:4; 10:9-19)? Absolutely, Waggoner said, a pre-made item wasn’t compelled speech (5:5-8). The crux of the issue is intent. When Phillips puts a pre-made product on display “in the stream of commerce in a public accommodation setting, his speech has been completed,” (6:1-4). However, when you consider custom designed cakes, it’s a whole new ballgame (6:7-10). Thus it is with Phillips; “we are drawing the line prior to the compulsion — there can be no compulsion of speech,” (6:4-6). And, this is about more than putting “words and symbols” onto the cake – it’s the act of custom making the product itself (8:8-19).

So, where is the line? Who can claim an artistic exemption on the basis of compelled speech? The justices hammered away on this line. Can a florist (11:9-13)? Yes, Wagonner said (11:14-17). What about a wedding invitation designer (11:18-21)? Of course (11:22). What about hair stylists (12:8) or makeup artists (12:17)?

• “Absolutely not,” Waggoner says (12:9).
• Justice Kagan is aghast; “Why is there no speech in — in creating a wonderful hairdo,” (12:12-13)?

Waggoner provided a legal answer, but not a particularly logical one. A tailor, a chef, a hairstylist and a makeup artist don’t produce “speech” because they (1) aren’t communicating a message with their product, and (2) their product isn’t analogous to other forms of protected speech (12:9-11; 12:23-13:5; 14:16-21).

This prompted Justice Sotomayor to ask how the Court could protect Phillips’ cake as a medium for public expression, when its primary purpose is to be eaten (15:21-25)!? Simple, Waggoner replied.

“[I]in the wedding context, Mr. Phillips is painting on a blank canvas. He is creating a painting on that canvas that expresses messages, and including words and symbols in those messages,” (16:9-14).

Well, what about sandwich artists (16:24-17:3)? The difference, Waggoner says, is the message being conveyed:

… when we have someone that is sketching and sculpting and hand designing something, that is creating a temporary sculpture that serves as the centerpiece of what they believe to be a religious wedding celebration, that cake expresses a message (17:4-10).

This distinction is the heart of the issue, according to Waggoner. If the very nature of the product is communicative, then you have “speech,” and this speech cannot be compelled. For example, this is why architecture is not “speech,” because “buildings are functional, not communicative,” (17:20-23).

Justice Breyer weighed in:

So, in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that — that really does baffle me, I have to say (18:4-10).

So, where on earth is the line (19:1-11)? What should we do? The answer, Waggoner says, is simple: “Is the individual who’s being compelled to speak objecting to the message that’s contained in that speech or the person? And that’s usually a very obvious inquiry,” (20:7-11). This is why Waggoner believes the issue of public accommodation laws related to race are completely different; “we know that that objection would be based to who the person is, rather than what the message is,” (23:3-6).

Here is the dividing line, and it isn’t something a secular Court can decide. Is sexual identity a legitimate category at all, from a Christian perspective? You can’t set theology aside here, because it informs how you answer the question. Everybody has a foundation for his worldview, and the Christian worldview (based on the Scriptures) proclaims that all sexual thoughts, intents and actions outside a monogamous, male and female sexual relationship in the context of a marriage covenant is deviant. To the Christian, “sexual identity” is not a legitimate category, because it isn’t part of the original, “good” created order. Race is, sexual identity is not.[2]

Waggoner, of course, didn’t go there. She simply continued to push the distinction between the racial public accommodation laws (which were about who the person is) and the Phillips case which, she insisted, is about the message, not the people. It’s unclear whether she (and her client) actually believe this, or if it’s merely a convenient legal peg to hang their case on.

How can the State fairly decide whether this message vs. identity distinction isn’t just a smokescreen? This was Justice Gorsuch’s question (24:18-21), and he didn’t receive a satisfactory answer.

Solicitor General’s Response on Behalf of Baker (from Noel Francisco)

Francisco insisted there must be “breathing space” for free speech protections for business owners, so they aren’t compelled to engage in “speech” for an event they disagree with (26:1-8). Dignity interests cut both ways, he argued (28:1-8).

What about a situation in a rural context, where only very limited services are available (28:10-29:11)? Leave that to the individual states, Francisco said (29:12-17).

Where is “the line?” You figure that out, he answered, by applying a two-fold test:

1. can the “art” in question be analogized to traditional art in a legitimate way, and
2. “is it predominantly art or predominantly utilitarian,” (41:1-3)?

In Phillips’ case, Francisco observed, “people pay very high prices for these highly sculpted cakes, not because they taste good, but because of their artistic qualities,” (41:3-6).

The goal is the intent of the purchaser. Is it merely a cake to be eaten? Why not go to Safeway? No, they clearly sought out Phillips so he could create, sculpt and fashion a special cake which is analogous to a traditional sculpture “except for the medium used,” (40:18-20). Is the creation’s purpose and effect intended to be (1) artistic, or (2) utilitarian? That is the key to answering the question (42:2-24).

In Phillips’ case, they sought him out for artistic purposes, to create an artistic and aesthetic effect on the wedding guests. Thus, they asked him to “speak” through the medium of the cake, and his “speech” must be protected. Francisco closed with a “slippery-slope” argument:

… if you were to disagree with our basic principle, putting aside the line about whether a cake falls on speech or non-speech side of the line, you really are envisioning a situation in which you could force, for example, a gay opera singer to perform at the Westboro Baptist Church just because that opera singer would be willing to perform at the National Cathedral (46:13-21).

State of Colorado (from Frederick Yarger)

Colorado’s position is simple (47:12-22):

1. if you are a retail establishment, then
2. you’re subject to anti-discrimination laws, and
3. “you cannot turn away from your storefront if you’re a retail store,” (65:21-23).

It really is that simple and, if you’re a retail establishment, the State can require you to serve a customer (50:11-19).

What about, say, a same-sex couple who went to Catholic Legal Services and demanded to be given legal service related to their marriage? Would Colorado force them to provide service (50:21-51:23)? Yes, Yarger says, if Catholic Legal Services were operating in a retail context, “then Colorado would have the ability to regulate them,” (52:3).

Justice Kennedy brought up an interesting point. Colorado’s opinion read, in part, that “freedom of religion used to justify discrimination is a despicable piece of rhetoric,” (52:14-16). Why shouldn’t the Court assume Colorado is prejudiced against religion, and act accordingly? Kennedy asked Yarger three times if he disavowed the statement, and Yarger tap-danced mightily to avoid answering (52:17-53:15). If there were a bias on Colorado’s part, he claimed, of course there would be the problem (54:12-16). But, such was not the case (55:15-23).

Colorado’s issue, Yarger said, is that Philipps’ actions were based on the identity of the customer. Phillips may claim the message is the problem but, Yarger argued, the message here is linked with the customer’s identity, so the argument lacks merit. “[T]he message in this case, Your Honor, depended entirely on the identity of the customer who was ordering the cake,” (62:15-18). So, if the baker chooses to refuse service, he is being discriminatory (63:16-21).

Justice Kennedy, once again, chimed in with some stern words (64:3-8):

Counselor, 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 Mr. Phillips’s religious beliefs.

Yarger disagreed, and his position hinges on granting the idea that “sexual identity” is a valid category, on par with race and sex (64:14-65:3). They’re protected by public accommodation laws, so “sexual identity” must be, too.

Attorney for Homosexual Couple (from David Cole)

Cole traveled over much of the same ground Yarger did. Beware the slippery slope; “to accept his argument leads to unacceptable consequences,” (74:20-21). Sexual identity is a valid category, along with race and sex (75:9-16).

Cole dismissed Francisco’s “artistic purpose and effect” argument. If a mom buys a cake for a child’s birthday party, “no one thinks that the baker is wishing happy birthday to the four-year-old. It’s the mom,” (78:1-3). The issue isn’t some alleged “message,” it’s the identity of the homosexual couple. “Because in this case, again, the only thing the baker knew about these customers was that they were gay. And, as a result, he refused to sell them any wedding cake,” (79:4-8).

For Colorado, if you’re in retail, your private beliefs do not allow you to discriminate against a protected class (92:6-10), and sexual identity is a protected class (87:13-19; 89:7-10). Justice Kennedy retorted, “your identity thing is just too facile,” (89:23-24).

Conclusion

The legal arguments hinge on whether the act of making a cake is “speech,” and whether that “speech” can be compelled by the State. Both sides presented valid “slippery-slope” arguments in support of their own positions. On balance, it is doubtful whether you can logically separate the identity of a homosexual couple from the message their wedding cake is meant to convey.

Aside from the legal arguments, there is a more profound question for the Christian – where is the dividing line between one’s right to soul liberty, and the opportunity to share the Gospel in all sorts of negative contexts? Could Philipps have baked the cake, and still made a positive opportunity out of this? Have his actions served to “maintain good conduct among the Gentiles, so that in case they speak against you as wrongdoers, they may see your good deeds and glorify God on the day of visitation,” (1 Pet 2:12)?

Should we allow everyone do what they want, according to their own consciences? Is this the best solution? Os Guinness wrote a book advocating a sophisticated version of this approach, and remarked,

Soul freedom for all was once attacked as naive and utopian, and it is still resisted as subversive. Yet it is not only a shining ideal but a dire necessity today and an eminently practical solution to the predicaments of our time. Truly it is the golden key to a troublesome situation in which the darker angels must not be allowed to dominate.”[3]

But, when it gets down to brass tacks, how do we actually do this? This case is about that question. How do you allow people to express their sincere beliefs, yet crack down on genuine bigotry and hatred? How do you carve out these exceptions, and where does it end?

Guinness remarked that, in the end, soul freedom depends on people thinking and acting like adults, and taking their civic responsibilities seriously. “Reciprocity, mutuality and universality are the key principles of this vision of a civil public square. In this sense a civil public square is the political embodiment of the Golden Rule.”[4] In this day and age, these are not virtues that totalitarians (on either side) are anxious to model. Instead, activists seek to force their views on the public by force of law, not by persuasion and discussion in the public square:

“The constant pursuit of rights through law alone rather than the habits of the heart has caught Americans in the toils of ever-spreading law. On the one hand, it has led to a strengthening of the law at the expense of the habits of the heart, of litigation at the expense of both civic education and the role of parents and schools, and of the lawyers and the lawyer class at the expense of other public servants.[5]

This case is the fruit of this particularly poisonous tree. The Court has been made the arbitrator of morality. How can the Court fulfill this mission? How can it draw the line this homosexual couple wants it to draw? In a moment of candor, Justice Breyer admitted, “I can’t think of a way to do it,” (59:11-12).

Notes

[1] I make no attempt to summarize or even reference the various briefs filed by the Petitioners or Respondents. Here is the question before the Supreme Court. If you’re interested, you can find them. Throughout this article, I’m referencing the official transcript of oral arguments. The citation format in the article is page number : line number.

[2] Of course, in the end, the only category distinctions which have eternal significance are (1) believer or (2) non-believer. Or, as the Didache puts it, “there are two ways, one of life and one of death, and there is a great difference between the two ways,” (Didache 1:1).

[3] Os Guinness, The Global Public Square: Religious Freedom and the Making of a World Safe for Diversity (Downer’s Grove, IL: IVP, 2013), 14.

[4] Guinness (Global Public Square, 181).

[5] Guinness (Global Public Square, 149).