Bake the cake - Three cheers for free speech and the US Supreme Court
I visit a secular T-shirt designer and ask him to print an anti-gay logo with a verse from Leviticus on my T-shirt: ‘If a man lies with a man as with a woman, both of them have committed an abomination; they shall surely be put to death.’ The T-shirt designer refuses. I take the designer to court. I cannot force him to print texts he finds offensive, the court rules.
A gay couple visit a Muslim T-shirt designer and ask him to print a pro-gay logo with the slogan: ‘Allah is a gay-friendly equal-opportunity lover.’ The designer refuses. The couple take him to court. The T-shirt designer cannot discriminate against gays even though he is offended by the message they want him to print, the court rules.
My illustration is entirely fictional. No gay activist would dare to sue a Muslim business for discrimination. What the analogy does illustrate is that each of these messages is offensive to one group, but acceptable to another. So who decides what is and what is not offensive? The State?
No! The state cannot set itself up as Supreme Pontiff of Speech Codes and Sacred Arbiter of Offensiveness, the Supreme Court of the United States (SCOTUS) has ruled decisively in the case of Masterpiece Cakeshop v Colorado Civil Rights Commission. The state has no business poking its snout into religion, sex or speech. It must remain neutral in all such matters.
So who decides what is and what is not offensive?
This is a double victory – for freedom of expression and for limiting the power of government. The SCOTUS ruling also piles irony on irony like a layered cake. It exposes the hypocrisy of secular people insisting on their right to discriminate when they are offended, while simultaneously demanding that religious people should be forced to do something even if the latter find the demand offensive.
What makes it even more ironic is that Justice Anthony Kennedy, who wrote the ruling, is the judge most responsible for the gay-rights revolution. Kennedy was the architect of the Obergefell v. Hodges opinion that gave same-sex couples the right to marry.
Here’s how the saga unfolds. In 2014, William Jack, a Christian educator from Colorado approaches three bakeries – Azucar Bakery, Gateaux Ltd and Le Bakery Sensual. Jack asks them to bake a Bible-shaped cake with two men holding hands and an X on top. He asks the baker to inscribe the biblical verses, ‘God hates sin. Psalm 45:7’ and ‘Homosexuality is a detestable sin. Leviticus 18:2,’ on the first cake. Jack asks the second baker to decorate the cake with the text, ‘God loves sinners’ and ‘While we were yet sinners Christ died for us. Romans 5:8’.
All three bakers refuse Jack their services. Jack sues. The Colorado Civil Rights Commission (CCRC) rules in favour of the three bakers. CCRC says that the bakers have refused to bake Jack’s cake not because of his religion but because he wanted ‘derogatory language and imagery’ on his cakes. The secular bakers are offended by Jack’s religious texts and anti-gay imagery. They nevertheless insist that they are not offended because the texts are religious but because the texts and images are ‘offensive to their own moral convictions’. They would have refused services to anyone with such messages, they say, regardless of the customer’s religion.
This is a double victory – for freedom of expression and for limiting the power of government.
But CCRC performs a legal somersault and applies wildly different standards when gay couple Charlie Craig and David Mullins visit Masterpiece Cakeshop in Colorado and ask Christian baker Jack Phillips to create a cake to celebrate their ‘gay wedding’.
Phillips says he cannot create a cake celebrating a same-sex wedding because it violates his religious beliefs. He offers to make other baked goods for the gay couple, even cakes for other occasions. Phillips says he is not discriminating against the couple because they are gay. In fact, he ‘will not design and create wedding cakes for a same-sex wedding regardless of the sexual orientation of the customer’.
The gay couple take Phillips to court. CCRC rules in their favour. It compares Phillips’ Christianity to the Holocaust and slavery and derides his religious convictions as ‘one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others’.
This week, in a landmark case, the Supreme Court finds that both cases ‘share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutory protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honour a personal conviction’ (emphasis mine).
The secular and Christian bakers are both clear that ‘they would not sell the requested cakes to anyone,’ while they would sell other cakes to gays, Christians or other customers (emphasis mine). ‘In both cases, it was the kind of cake, not the kind of customers, that mattered to the bakers,’ rules Justice Kennedy.
The icing on the SCOTUS ruling is the explicit declaration that ‘it is not ... the role of the State or its officials to prescribe what shall be offensive’, just as it is not for the state to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’ In fact, ‘A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness,’ rules SCOTUS.
CCRC is wrong to judge Christian baker Phillips’ religious convictions on same-sex marriage as ‘offensive’ because it amounts to the ‘judgmental dismissal of a sincerely held religious belief’ and is ‘antithetical to the First Amendment’. Kennedy finds the double standards of offensiveness as applied by CCRC to be unjust when it applies them to the Christian baker and not to the secular bakers.
Justice Kennedy reiterates the right of businesses, ‘to reject orders for any number of reasons’, including finding a ‘particular product requested by a customer to be “offensive”.’ He argues that ‘no bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment’.
The words of Kennedy’s ruling defending offensive speech deserve to be inscribed on the biggest cake in US baking history: ‘In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.’
Free speech includes offensive speech. God, not government, decides what is offensive. The state has no right to play God. The state has no right to elevate ‘one view of what is offensive over another’. The state can guarantee liberty for all – religious and secular – only if it is limits its powers and stops encroaching into the domain of faith, speech and sexuality. Nobody has the right to not be offended. It’s your problem if you are offended, and you’d better learn to deal with it.
Three cheers for offensive speech, for the First Amendment and for the Supreme Court of the United States of America!
(Originally published in Republic Standard)