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Of Gays and Wedding Cakes-Sifting through the arguments
Frontpagemagazine ^
| December 15, 2017
| Bruce Bawer
Posted on 12/15/2017 4:14:09 AM PST by SJackson
Last week the U.S. Supreme Court heard oral arguments in the case known as Masterpiece Cakeshop, Ltd., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins. Phillips is the Lakewood, Colorado, baker who, citing religious reasons, refused in 2012 to make a wedding cake for Craig and Mullins, a same-sex couple.
So far, Craig and Mullins have been winning. When they took their case to the Colorado Civil Rights Commission, it ruled that when a baker refuses to sell a wedding cake to a couple because they're gay, it amounts to an illegal refusal of service by a public accommodation on the basis of sexual orientation. Phillips, an evangelical Christian, took the case to the Colorado Court of Appeals, which in 2015 unanimously affirmed the commission's ruling. This June, after the Colorado Supreme Court chose not to review the case, the U.S. Supreme Court agreed to hear it, apparently because of one detail of Phillip's defense: he said that his refusal was not an act of discrimination – he would've been glad to bake, say, a birthday cake for the couple – but he didn't want to bake a wedding cake for them, because that would have felt to him like an implicit endorsement of something he found morally objectionable.
The most commonly heard argument for Phillips is that the First Amendment, by guaranteeing his freedom of religion, also guarantees his right to turn down any job that would involve him in an activity that is at odds with his religious beliefs. This argument doesn't work for me, because my first reaction to it is to picture a devout Muslim doctor presented with the case of a gay or Jew or Muslim apostate who's on the verge of death and whose life he, the doctor, is in a position to save. Let's say the doctor, aware that Islam commands him to kill such people, not save them, allows the patient to die. Does he have First Amendment religious protections on his side?
Twenty-one years ago I edited an influential book of essays entitled Beyond Queer: Challenging Gay Left Orthodoxy, which sought to stake out alternatives to the lockstep far-left positions on various subjects – marriage, religion, family, etc. – that dominated the gay-rights movement at the time. Many of the conservatives, moderates, libertarians, and classical liberals who contributed to Beyond Queer were early proponents of same-sex marriage at a time when the queer left regarded the very idea as a vile capitulation to straight, conservative values. Only later, when they realized that most gays wanted the right to marry, did the gay left change its tune. Now it's the same gay left, which once despised gay marriage, that is out gunning for those, like Jack Phillips, who have moral misgivings about it.
Several of my old BQ confrères have weighed in on the cake case. They're split. BQ contributor Dale Carpenter, who teaches law at SMU, has joined with Eugene Volokh (a heterosexual UCLA prof whom I know only by reputation) in writing a brief supporting Craig and Mullins. While acknowledging that a “freelance writer cannot be punished for refusing to write press releases for the Church of Scientology” and “a photographer...should not be punished for choosing not to create photographs celebrating a same-sex wedding,” Carpenter and Volokh distinguish between these actions and cake-making. Writing a press release, they contend, is a speech act; making a cake is not. “A chef, however brilliant, cannot claim a Free Speech clause right not to serve certain people at his restaurant, even if his dishes look stunning,” they write. “The same is true for bakers.”
Hmm. First of all, I can't see how taking wedding pictures is any more of a speech act than baking a wedding cake. Nor can I see how denying restaurant service to people – a clear accommodation issue – is the same as refusing to bake a cake to order for a specific occasion. If you don't think a cake designer qualifies as an expressive artist, take a spin around the nearest contemporary art museum and keep in mind that every painting, sculpture, collage, and installation there – from the giant, all-black canvas to the heap of ten thousand marbles on the floor – is considered a work of expressive art and is thus fully protected by the First Amendment. Is a beautiful cake any less of an expressive work?
Also taking the side of Craig and Mullins is John Corvino, who teaches philosophy at Wayne State (and who would have been in BQ if he'd been just a year or two older at the time). Corvino makes a very careful, logical case: imagine, he says, a vintner who would gladly sell wine to Catholic priests, but not if they wanted it “for sacramental use.” Or a fabric-store owner “who creates artistic silk-screened fabrics” that she would sell to Muslims, but not for the purpose of making hijabs. Corvino rejects any legitimate “difference between discrimination that’s user-based” (“I won't sell to priests”) and “discrimination that’s use-based” (“I'll gladly sell to priests, but won't provide wine for a Mass”). I respectfully disagree. In fact, his hijab example points up exactly why I'm on Phillips's side: hijabs are symbols of female oppression, and I don't think anyone should be forced by the law to have anything to do with creating one.
While Carpenter and Corvino have stepped up to the plate for Craig and Mullins, BQ contributor Andrew Sullivan – who in 1989, in the New Republic, wrote the first major article proposing same-sex marriage – comes down on the side of Phillips. He makes a point – not so much legal as ethical – with which I entirely concur: those of us who pioneered the idea of gay marriage two decades ago have won fast and won big. We didn't just win in the Supreme Court; we won in the court of public opinion. And that happened because fair-minded heterosexuals decided that civil gay marriage was a simple matter of live and let live. Why can't gay people return the favor? “[I]f there are alternative solutions, like finding another baker, why force the point?” asks Sullivan. “[I]t seems deeply insensitive and intolerant to force the clear losers in a culture war into not just defeat but personal humiliation.” Besides, “[a] law that controls an individual’s conscience violates a core liberal idea.” Absolutely.
The Cato Institute (home to two BQ alums) also takes Phillips's side, and has joined with the Reason Foundation and the Individual Rights Foundation in writing a brief in his support. They reject Carpenter's and Volokh's distinction between a wedding photographer and a wedding cake-baker; both are “expressive professionals” who “must have the right to decide which speech to create or commissions to take.” They elaborate: “When hired to make a wedding cake, Jack Phillips sits down with the couple to discuss their particular desires, interests, and tastes, then spends hours designing the cake, baking it, making fillings and decorations, and sculpting the finished product....The fact that Jack’s media are icing and chocolate rather than ink or paint does nothing to diminish the artistic content of his work.” If Phillips could be forced to create a cake for a gay wedding, they write, then “a graphic designer who thinks Scientology is a fraud would violate Colorado law...if he refused to design flyers to be used at Scientologists’ meetings.”
That's exactly the argument that speaks to me. Yes, I'm a gay man in a same-sex marriage. But I'm also a writer who, for many years now, has spent a lot of time working as a translator and ghostwriter. Some of the materials I've translated or ghostwritten express views with which I disagree. That's okay. On a couple of occasions, however, I've been asked to be involved in the production of texts with which I disagreed to such an extent that my dissent rose to the level of moral objection. In those cases, I turned down the assignments without hesitation. It never occurred to me to be grateful for the right to do so: in a free country, it only makes sense that I shouldn't have to write or translate anything from which I violently dissent.
Phillips should have the same right. He has the First Amendment on his side – not because of its protection of the exercise of religion, but because of its protection of freedom of expression. Yes, like a grocer or haberdasher, Phillips is selling a product; yes, like a doctor or firefighter, he's also providing a service. But unlike those professions, his work also involves expression of a kind and to a degree that, to my mind, should be recognized as being covered by the First Amendment. A picture in the Guardian shows Phillips working on a big, three-tiered white cake: he has a brush in his hand, and in the foreground of the photograph are a couple of cups full of brushes and an array of containers of what I would assume to be frosting. He looks like an artist, only with a cake as his canvas.
Two decades ago, the honchos of the queer-left movement tried to quash the very idea of same-sex marriage. They demonized those of us who advocated for it by calling us traitors: gays, they maintained, were supposed to be vanguards of a rebellion against capitalism, bourgeois domesticity, and other values that they abhorred as reactionary; to want to marry was to surrender entirely to the enemy. They've long since embraced same-sex marriage, on tactical grounds, and now that it's the law of the land, they're out to use it as a cudgel with which to beat those whom they still view as their ideological foes. It's disgusting – and it's stupid. Queer-left “leaders” don't seem to realize that the rapid success of the gay-rights movement in the U.S. has depended to a great extent on (to borrow a phrase from Tennessee Williams) the kindness of strangers – on, that is, the basic decency of ordinary Americans. To accept their decency and then turn around and treat their own deepest convictions with palpable contempt seems to me the very height of indecency.
TOPICS: Culture/Society; Editorial; Government
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1
posted on
12/15/2017 4:14:09 AM PST
by
SJackson
To: SJackson
Let them eat cake!
A BIBLICAL Message to LGBT folks EVERYWHERE!
Genesis 13:13
Now the men of Sodom were wicked and were sinning greatly against the LORD.
Genesis 18:20-21
20. Then the LORD said, "The outcry against Sodom and Gomorrah is so great and their sin so grievous
21. that I will go down and see if what they have done is as bad as the outcry that has reached me. If not, I will know."
Genesis 19:4-7
4. Before they had gone to bed, all the men from every part of the city of Sodom--both young and old--surrounded the house.
5. They called to Lot, "Where are the men who came to you tonight? Bring them out to us so that we can have sex with them."
6. Lot went outside to meet them and shut the door behind him
7. and said, "No, my friends. Don't do this wicked thing.
Leviticus niv
18:22 Do not have sexual relations with a man as one does with a woman; that is detestable.
20:13 If a man has sexual relations with a man as one does with a woman, both of them have done what is detestable. They are to be put to death; their blood will be on their own heads.
Psalms 12:8 The wicked freely strut about when what is vile is honored among men.
Isaiah 3:9 The look on their faces testifies against them; they parade their sin like Sodom; they do not hide it. Woe to them! They have brought disaster upon themselves.
2 Peter 2:13b Their idea of pleasure is to carouse in broad daylight. They are blots and blemishes, reveling in their pleasures while they feast with you.
Ezekiel 16:49-50
49. "`Now this was the sin of your sister Sodom: She and her daughters were arrogant, overfed and unconcerned; they did not help the poor and needy.
50. They were haughty and did detestable things before me. Therefore I did away with them as you have seen.
Romans 1 New American Bible (Revised Edition) (NABRE)
18 The wrath of God is indeed being revealed from heaven against every impiety and wickedness of those who suppress the truth by their wickedness. 19 For what can be known about God is evident to them, because God made it evident to them. 20 Ever since the creation of the world, his invisible attributes of eternal power and divinity have been able to be understood and perceived in what he has made. As a result, they have no excuse; 21 for although they knew God they did not accord him glory as God or give him thanks. Instead, they became vain in their reasoning, and their senseless minds were darkened. 22 While claiming to be wise, they became fools 23 and exchanged the glory of the immortal God for the likeness of an image of mortal man or of birds or of four-legged animals or of snakes.
24 Therefore, God handed them over to impurity through the lusts of their hearts for the mutual degradation of their bodies. 25 They exchanged the truth of God for a lie and revered and worshiped the creature rather than the creator, who is blessed forever. Amen. 26 Therefore, God handed them over to degrading passions. Their females exchanged natural relations for unnatural, 27 and the males likewise gave up natural relations with females and burned with lust for one another. Males did shameful things with males and thus received in their own persons the due penalty for their perversity. 28 And since they did not see fit to acknowledge God, God handed them over to their undiscerning mind to do what is improper. 29 They are filled with every form of wickedness, evil, greed, and malice; full of envy, murder, rivalry, treachery, and spite.
2 Peter 2
1. But there were also false prophets among the people, just as there will be false teachers among you. They will secretly introduce destructive heresies, even denying the sovereign Lord who bought them--bringing swift destruction on themselves.
2. Many will follow their shameful ways and will bring the way of truth into disrepute.
3. In their greed these teachers will exploit you with stories they have made up. Their condemnation has long been hanging over them, and their destruction has not been sleeping.
4. For if God did not spare angels when they sinned, but sent them to hell, putting them into gloomy dungeons to be held for judgment;
5. if he did not spare the ancient world when he brought the flood on its ungodly people, but protected Noah, a preacher of righteousness, and seven others;
6. if he condemned the cities of Sodom and Gomorrah by burning them to ashes, and made them an example of what is going to happen to the ungodly;
7. and if he rescued Lot, a righteous man, who was distressed by the filthy lives of lawless men
8. (for that righteous man, living among them day after day, was tormented in his righteous soul by the lawless deeds he saw and heard)--
9. if this is so, then the Lord knows how to rescue godly men from trials and to hold the unrighteous for the day of judgment, while continuing their punishment.
10. This is especially true of those who follow the corrupt desire of the sinful nature and despise authority. Bold and arrogant, these men are not afraid to slander celestial beings;
11. yet even angels, although they are stronger and more powerful, do not bring slanderous accusations against such beings in the presence of the Lord.
12. But these men blaspheme in matters they do not understand. They are like brute beasts, creatures of instinct, born only to be caught and destroyed, and like beasts they too will perish.
13. They will be paid back with harm for the harm they have done. Their idea of pleasure is to carouse in broad daylight. They are blots and blemishes, reveling in their pleasures while they feast with you.
But there IS hope!!!
1 Corinthians 6:9-11
9. Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived:
Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders
10. nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God.
11. And that is what some of you were. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God.
If you could NOT change, you would be in most pitiful shape...
3
posted on
12/15/2017 4:27:06 AM PST
by
Elsie
(Heck is where people, who don't believe in Gosh, think they are not going...)
To: SJackson
It was not the cake itself. It was the artistic designs that he would have to decorate the cake with. He also will not do Halloween decorations on cakes for the same religious reasons. He will sell you a cake. Then you can decorate it yourself after you take it home.
4
posted on
12/15/2017 4:43:43 AM PST
by
Trumpet 1
(US Constitution is my guide.)
To: Elsie
Thank you for your synopsis on this subject. All they got to do is read it....
To: Trumpet 1
This argument doesn’t work for me, because my first reaction to it is to picture a devout Muslim doctor presented with the case of a gay or Jew or Muslim apostate who’s on the verge of death and whose life he, the doctor, is in a position to save. Let’s say the doctor, aware that Islam commands him to kill such people, not save them, allows the patient to die. Does he have First Amendment religious protections on his side?
Straw man argument. A cake is not a human life. Religious freedom does not include murder or human sacrifice.
Freedom of association should rule. No one should be forced to associate or produce for someone they do not wish to associate or produce for.
The market will fix the problems without government coercion. The “public accomodation” nonsense for private property is an intrusion by the state that criminalizes basic human, non-violent interactions.
6
posted on
12/15/2017 4:59:23 AM PST
by
marktwain
(President Trump and his supporters are the Resistance. His opponents are the Reactionaries.)
To: SJackson
To accept their decency and then turn around and treat their own deepest convictions with palpable contempt seems to me the very height of indecency.
They should also realize that they are vastly outnumbered by the ones who allowed them this and if they make enough enemies, they will find out that they are outgunned also.
Trying to force my children into their sex-ed classes is one of those things I will have to stand up against.
7
posted on
12/15/2017 5:06:50 AM PST
by
wbarmy
(I chose to be a sheepdog once I saw what happens to the sheep.)
To: SJackson
I don’t know why this isn’t treated as a simple legal matter. This incident took place in 2012. Colorado legalized same sex marriage in 2014. By refusing to bake the cake the baker was refusing to take part in something that was against the law. Would a mechanic be charged if he refused to fix a car he knew was going to be used in a bank heist?
To: SJackson
I am sure legal minds have an answer, but it occurs to me that a law must apply equally to all.
We know that a muslin baker would refuse to design a gay cake, so it would seem that the CO Civil Rights apparatchiks would be doing a statewide roundup of non-complying bakers and raking in millions in fines.
We know that no state government is going to squeeze the muslins who do not comply with the gay agenda, but does not the Supreme Court take notice of this disparity in the application of statute and see it as a lick against the defendants in this case?
9
posted on
12/15/2017 5:22:26 AM PST
by
lurk
To: SJackson
The government does not have the right to force a business to produce or not to produce a specific item. This is the crux of the argument.
The reason for not producing the item doesn’t matter.
Obviously the government is forcing people to conform to a thought that the government has no right to force people to conform to.
If the bakery had refused to make a cake with biker symbols on it, the government would not have turned into the Gestapo over it.
10
posted on
12/15/2017 5:30:36 AM PST
by
I want the USA back
(*slam is not a religion. It is a political movement to establish a religion.)
To: SJackson
“This argument doesn’t work for me, because my first reaction to it is to picture a devout Muslim doctor presented with the case of a gay or Jew or Muslim apostate who’s on the verge of death and whose life he, the doctor, is in a position to save. Let’s say the doctor, aware that Islam commands him to kill such people, not save them, allows the patient to die. Does he have First Amendment religious protections on his side?”
Totally bogus argument. Killiing is a crime, but the doctor, if he obeyed Islamic teaching, would roam the streets on a killing spree.
There is also a difference between offering non-judgmental service, such as a tax preparer filing a married return for a gay couple who are, in the eyes of the tax code, married, and acts offering approval or affirmation of homosexuality.
Letting them die would be the doctor equivalent of refusing to file a tax return, while baking a cake celebrating their homosexuality would be the doctor equivalent of teaching them “safe” butt sex techniques. If such things exist.
“He has the First Amendment on his side – not because of its protection of the exercise of religion, but because of its protection of freedom of expression.”
There have always been SOME restrictions on exercise of religion. You cannot make up a new religion that requires you to use illegal drugs regularly. You cannot buy puppies, then slit their throats as a religious act. IIRC, the rule is a balance of how much imposition it is versus the societal gain. If you don’t bake a cake for a gay wedding, they have to go buy somewhere else. Not much societal gain in that! If you don’t provide IUDs to your employees, they can buy condoms cheap. Again, intruding on religious belief doesn’t gain much for society.
If you believe your religion requires you to murder gays, then you will be hunted down and executed by the state for murder.
11
posted on
12/15/2017 5:43:09 AM PST
by
Mr Rogers
(Professing themselves to be wise, they became fools)
To: SJackson
One of the problems with this discussion is that people say "a cake" is what he is selling them, as if it is a car or a bottle of soda. But the issue is that the cake for the wedding at issue was not a fully-formed product sitting in a display case waiting to be bought, but rather a custom design service requiring hours of consultation and creation.
What Phillips is selling, at a premium rate, are his custom design services. And to compel service is a form of slavery.
12
posted on
12/15/2017 6:40:07 AM PST
by
Albion Wilde
(I was not elected to continue a failed system. I was elected to change it. --Donald J. Trump)
To: SJackson
The key is not refusal to sell to a homosexual customer but refusal to bake a homosexual wedding ceremony product
If 2 straight people ordered a homosexual ceremony cake the refusal would have been the same
Why are muslim bakeries getting a pass? Cant they be forced to sell homosexual wedding, Christmas and Easter cakes?
13
posted on
12/15/2017 7:15:50 AM PST
by
silverleaf
(A man who kneels for the national anthem doesn't stand for much of anything)
To: SJackson
This whole post is so deceptive and leaves out so much information. The basic argument the poster makes is this:
___________________________________________________________
The most commonly heard argument for Phillips is that the First Amendment, by guaranteeing his freedom of religion, also guarantees his right to turn down any job that would involve him in an activity that is at odds with his religious beliefs. This argument doesn’t work for me, because my first reaction to it is to picture a devout Muslim doctor presented with the case of a gay or Jew or Muslim apostate who’s on the verge of death and whose life he, the doctor, is in a position to save. Let’s say the doctor, aware that Islam commands him to kill such people, not save them, allows the patient to die. Does he have First Amendment religious protections on his side?
__________________________________________________________
Several things to be aware of.
The baker didn’t mind making a cake, it was what was to be written on it that he found objectionable. I understand the position, there are several things I would not write for someone too. In the story of the queer patient that needed emergency surgery there was no religious feature involved. The doctor was not going to be asked to make his anus more comfortable for sex, he wasn’t going to be asked to do something to any sex organs, he was simply going to be asked to save his life, not sexual statement there at all. The argument like most are simply straw man arguments. You should always look for the straw man in any leftist or queer arguments.
I detest queer acts. I have never been unhelpful or rude to someone because they were queer. I have never even been rude to some queer who was hitting on me but simply expressed that I travel a different road. It is not my job to punish or even judge queers, but it is my job to judge what I do. Writing “Congratulations c**k suckers” on a cake is something I don’t think I would do.
If a queer needed my help to save his life there isn’t one person in a million who would deny him help because he was queer.
14
posted on
12/15/2017 9:18:17 AM PST
by
JAKraig
(my religion is at least as good as yours)
To: SJackson
The author switches from a cake to saving life and does not consider proportionality. Sophistry, and unintelligent sophistry at that.
15
posted on
12/15/2017 10:44:31 AM PST
by
MortMan
(I can resist anything, except temptation. /sarc)
To: SJackson
“This argument doesn’t work for me, because my first reaction to it is to picture a devout Muslim doctor presented with the case of a gay or Jew or Muslim apostate who’s on the verge of death and whose life he, the doctor, is in a position to save. Let’s say the doctor, aware that Islam commands him to kill such people, not save them, allows the patient to die. Does he have First Amendment religious protections on his side?”
He would in non life threatening cases have that right but I doubt any hospital would hire him or even be forbidden from firing him. Since it is certainly not a reasonable accommodation of religious belief to allow the physician to reject doing what is essentially his job. A cake is not a life or death situation. Talk about your straw man arguments.
16
posted on
12/15/2017 12:32:44 PM PST
by
lastchance
(Credo.)
To: lastchance
Perhaps it’s a straw man argument, but since the author is correct on things like cakes, I’d give him the benefit of the doubt and say he’s overreacting to the example of Muslim doctors. It’s the first amendment right to scream fire in a theatre, doesn’t exist. Any more than it would for a Muslim doctor. I guess it is a straw man. I can imagine a Muslim doctor making that decision in many parts of the world.
17
posted on
12/15/2017 3:47:59 PM PST
by
SJackson
(The Pilgrims—Doing the jobs Native Americans wouldn’t do !)
To: Albion Wilde
You are correct, it's the design the argument is about. The individual creativity of the baker.
It's a lovely painting. IMO, still erotic. It's thought to be a commission. Should Titian be required to paint a man in a similar sensual pose.
What if it doesn't come off as erotic. Can Titian or the baker be sued if their work isn't up to the expected standard.
18
posted on
12/15/2017 3:56:59 PM PST
by
SJackson
(The Pilgrims—Doing the jobs Native Americans wouldn’t do !)
To: lastchance
He would in non life threatening cases have that right but I doubt any hospital would hire him or even be forbidden from firing him. If self employed, perhaps, in a work environment, I doubt it. Which is why hospitals would be reluctant to hire or accredit him. Thanks to the NFL, the difference between our right to non governmental interference and employer enforcement of work rules is being lost.
19
posted on
12/15/2017 4:00:45 PM PST
by
SJackson
(The Pilgrims—Doing the jobs Native Americans wouldn’t do !)
To: SJackson
I am going to repeat what I have said before and that is that the core of this argument is not religion but a even more basic question. Must I work for anyone as long as they pay me?
I do book keeping and tax preparation.
Must I do the accounting for the local strip club?
I sell used and rare books.
Must I accept a commission to locate a first English edition of "The 120 Days of Sodom"?
I do yard work.
Must I cut the lawn at DNC headquarters?
Where do we draw the line?
If I want to hire writer to compose a book on vivisection can I make an offer to Bruce Bawer and he will be forced to write it?
20
posted on
12/15/2017 4:11:22 PM PST
by
Harmless Teddy Bear
(Not a Romantic, not a hero worshiper and stop trying to tug my heartstrings. It tickles! (pink bow))
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