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Masterpiece Cakeshop Is Fighting For The First Amendment, Not Against Gay Marriage


This week, the Supreme Court agreed to hear the case of Masterpiece Cakeshop owner Jack Phillips, the man who refused to create a specialty wedding cake for a same-sex couple in Colorado in 2012. (Last year, I visited Masterpiece and wrote a long piece detailing the incident that has upended Phillips’ life.) Yet the stories that dominate coverage not only distort the public’s understanding of the case, but also its serious implications.

For one thing, no matter how many times people repeat it, the case isn’t about discrimination or challenging gay marriage. When the news first broke, for instance, USA Today tweeted “The Supreme Court has agreed to reopen the national debate over same-sex marriage.” The headline (and story) at the website was worse: “Supreme Court will hear religious liberty challenge to gay weddings.” Others similarly framed the case. (And don’t worry, “religious liberty” is almost always solidly ensconced inside quotation marks to indicate that social conservatives are just using it as a facade.)

There is an impulse to frame every issue as a clash between the tolerant and closeminded. But the Masterpiece case doesn’t challenge, undermine, or re-litigate the issue of same-sex marriage in America. Gay marriage wasn’t even legal in Colorado when this incident occurred.

So the Associated Press’ headline and story — “Supreme Court Will Decide If Baker Can Refuse Gay Couple Wedding Cake” — is also wrong. As is The New York Times headline: “Justices to Hear Case on Baker’s Refusal to Serve Gay Couple,” which was later changed to the even worse “Justices to Hear Case on Religious Objections to Same-Sex Marriage.”

A person with only passing interest in this case might be led to believe that Phillips is fighting to hang a “No Gays Allowed” sign in his shop. In truth, he never “refused” to serve a gay couple. He didn’t even really refuse to sell them a wedding cake, which they could have bought without incident. Everything in his shop was available to gays and straights and anyone else who walked in his door. What Phillips did was refuse to use his skills to design and bake a unique cake and participate in a gay wedding. Phillips didn’t query anyone on his or her sexual orientation. It was the Colorado civil rights commission that took it upon itself to peer into Phillips’ soul, indict him, and destroy his business over a thought crime.

Like many other bakers, florists, photographers, and musicians — and millions of other Christians — Phillips holds genuine, long-standing religious convictions. If David Mullins and Charlie Craig had demanded that Phillips create an erotic-themed cake, the baker would have similarly refused for religious reasons, just as he had with other costumers. If a couple had asked him to design a specialty cake that read “Congrats on the abortion, Jenny!” I’m certain he would have refused them as well, even though abortions are legal. It’s not the people, it’s the message.

In its tortured decision, the Colorado Court of Appeals admitted as much, contending that while Phillips didn’t overtly discriminate against the couple, the “act of same-sex marriage is closely correlated to Craig’s and Mullins’ sexual orientation” so they could divine his real intentions.

In other words, the threshold for denying religious liberty and free expression is the presence of advocacy or a political opinion that conflates with faith. The court has effectively tasked itself with determining when religion is allowed to matter to you. Or in other words, if SCOTUS upholds the lower court ruling, it will empower unelected civil rights commissions — typically stacked with hard-left authoritarians — to decide when your religious actions are appropriate.

How could any honest person believe this was the Constitution’s intent? There was a time, I’m told, when the state wouldn’t substantially burden religious exercise and would use the least restrictive means to further compelling interests. Today, the state can substantially burden a Christian because he’s hurt the wrong person’s feelings.

Judging from the emails and social media reactions I’ve gotten to this case, people aren’t only instinctively antagonistic because of the players involved, but because they don’t understand the facts. In this era of identity politics, some have been programed to reflexively side with the person making accusations of status-based discrimination. All of it in an effort to empower the state to coerce a minority of people to see the world their way.

Well, not all people. In 2015, a Christian activist named Bill Jack went to three Colorado bakeries and asked for each to design a cake in the shape of a Bible, with one side reading “God hates sin – Psalm 45:7,” and the other, “Homosexuality is a detestable sin – Leviticus 18:22.” They refused. Even though Christians are a protected group, the civil rights commissioners — one member of this tolerance brigade compared Christianity to Nazism — threw out the case. The ACLU called the biblical passages “obscenities.” Because I guess the Bible doesn’t “correlate” closely enough with a Christian’s identity.

Or perhaps we’ve finally established a state religion in this country: it’s just run on the dogma of “social justice.”