Using ‘free speech’ as a cover for discrimination

FILE-- Jack Phillips, the operator of Masterpiece Cakeshop in Lakewood, Colo., Oct. 30, 2014. The U.S. Supreme Court on June 26, 2017, agreed to hear an appeal from Phillips, who has religious objections to same-sex marriage and had lost a discrimination case for refusing to create a cake to celebrate such a union. (Matthew Staver/The New York Times)
Matthew Staver/The New York Times
Jack Phillips (above) is the operator of Masterpiece Cakeshop in Lakewood, Colo. The US Supreme Court has agreed to hear an appeal from Phillips, who has religious objections to same-sex marriage and had lost a discrimination case for refusing to create a cake to celebrate such a union.

COLORADO CAKE MAKER Jack Phillips is devout about his artistry in icing and fondant. He’s also devout about his Christian faith, so much so that he believes it would be deeply sinful to prepare a wedding cake for a same-sex couple. Last week, the US Supreme Court agreed to hear his case, and arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission — one in a series of efforts to fence in the galloping acceptance of same-sex marriage — could come as soon as this fall.

Events were set in motion in 2012, when David Mullins and Charlie Craig, who planned to marry in Massachusetts, stopped into Masterpiece Cakeshop in Lakewood, Colo., to order a wedding cake. Phillips refused to serve them, even though Colorado law says businesses open to the public can’t discriminate based on sexual orientation.

Phillips, of course, has a constitutionally protected First Amendment right to profess his faith. And he’s made it clear there’s no room for compromise, telling The New York Times: “I believe that the Bible teaches that homosexuality is wrong, and that to participate in a sin is wrong for me. For me to take part in it against my will is compelling me to make a statement that I don’t want to make.”


But there’s another right hanging in the balance: nondiscrimination. Historically, courts have tried to strike an equitable balance between expanded civil rights and religious expression. Since the 1964 Civil Rights Act, lawmakers and the courts have allowed some exemptions but have tended to draw the line when claims of religious freedom are used to justify discrimination. As James Esseks, director of the ACLU LGBT project put it: “You have freedom to believe and to preach your faith, until your actions harm other people.” Turning away customers because of their sexuality crosses that line.

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There’s a related First Amendment principle at stake, too. The Phillips case is part of an alarming effort to warp the purpose of that cherished freedom by turning it into an antiregulatory hammer. Companies have increasingly claimed that complying with laws they don’t like amounts to “compelled speech,” and have sought to block them on those grounds. A ruling for Phillips would undoubtedly give momentum to claims that have nothing to do with religion: If baking a cake counts as compelled speech, does disclosing damaging or embarrassing information to shareholders?

Speech, the Supreme Court noted in a 1989 ruling, is implicit is almost every activity, and an overly pedantic reading of the First Amendment would suggest that almost anything is subject to its protections. Then, the court rejected such a misuse of the First Amendment. Today’s Supreme Court justices should recognize that the Masterpiece Cakeshop case is not about forcing speech, but about banning discriminatory conduct. The Colorado cakemaker should be free to worship as he pleases, but not to abrogate settled civil rights law under the guise of free speech.