A hustle here, and a hustle there

Israel Malachi

On June 26, 2017, The U.S. Supreme Court agreed to hear an appeal from Colorado "cake artist" Jack Phillips, co-owner of Masterpiece Cakeshop Ltd., in a dispute that centers on Phillips' declination to create a custom wedding cake for a same-sex couple, David Mullins and Charlie Craig, who were planning to marry in Massachusetts. The couple filed discrimination charges, and they won before a civil rights commission and in the courts.

Mr. Phillips, has operated his custom cake business for 22 years, and adheres to the tenets of Fundamentalist Christianity. His faith guides his business decisions. Masterpiece Cakeshop is not open on Sundays, and will not make cakes that do not align with Mr. Phillips' beliefs. This includes cakes with offensive written messages and cakes celebrating events or ideas that violate his beliefs, including cakes celebrating Halloween (a decision that costs him significant revenue), anti-American or anti- family themes, atheism, racism, or indecency.

He also will not create cakes with hateful, vulgar, or profane messages, or sell any
products containing alcohol.

Consistent with this longstanding practice, Phillips also will not create cakes celebrating any marriage that is contrary to his understanding of biblical teaching. As a Christian, Phillips believes that God ordained marriage as the sacred union between one man and one woman, a union that exemplifies the relationship of Christ and His Church. Mr. Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design. For this reason, Phillips politely declined to design and create a cake celebrating Respondents Craig’s and Mullins’ same-sex wedding, but offered to make any other cake for them.

Although Respondents Craig and Mullins easily obtained a free wedding cake with a rainbow design from another bakery, they filed a charge of sexual orientation discrimination with the Civil Rights Division in Colorado.

In the brief presented to the court, Mullins and Craig's lawyer stated, "It is no answer to say that Mullins and Craig could shop somewhere else for their wedding cake, just as it was no answer in 1966 to say that African-American customers could eat at another restaurant.”

That sounds very noble and righteous, but is a false equivalence. First off, he was not refusing to sell to them. He was refusing to create a work of art for the occasion in question. He would have made a custom birthday cake, or other items, just not a wedding cake. It is well established that the State cannot force an artist or craftsman to create a work against their will. The First Amendment prohibits the government from telling private citizens “what they must say.”

Cake design and creation is it's own art form and mode of expression. Cake making dates back to at least 1175 B.C. Of any form of cake, wedding cakes have the longest and richest history. In modern Western culture, the wedding cake serves a central expressive component at most weddings and is traditionally served at the reception celebrating the couple’s union. It not only communicates that the couple is now married, but forms the centerpiece of a ritual in which the couple celebrates their marriage by feeding each other cake and then sharing cake with their guests. Only a wedding cake communicates this special celebratory message, slicing a pizza or a pot roast would not have the same effect. Wedding cakes are essential to a modern wedding. A memorable cake is almost as important as the bridal gown in creating the perfect wedding. Because they are so important to creating the right celebratory mood, wedding cakes are uniquely personal to the newly married couple and require significant collaboration between the couple and the artist to create the perfect design.

The Colorado Civil Rights Commission ruled that he engaged in sexual orientation discrimination under the Colorado Anti- Discrimination Act (“CADA”). Now, the Colorado Civil Rights Commission has had cake-related disputes previous to this one, and has chosen not to apply CADA to ban (1) an African-American cake artist from refusing to create a cake promoting white-supremacism for the Aryan Nation, (2) an Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church, and (3) three secular cake artists from refusing to create cakes opposing same-sex marriage for a Christian patron.

Second, the discrimination based on race, is much different from discrimination based on sexual orientation. All races claim gay members, but not all members of any given race are gay. Science has repeatedly attempted to isolate the "gay gene", but has been unable to do so, thus far. One may claim to be "born this way", and it may be true, but not through genetics. Fundamental Christianity actually teaches that a gay or transgendered individual is in that state not by their free will, but by influence from evil spirits or outright demonic possession.

The fact is, Fundamentalists are rapidly becoming a minority. They must be protected in the same way that other minority groups, homosexuals included, are. The laws of our fair city, Duluth, Minnesota, already prevent minority religious believers from living in the city limits. How so, you may ask? Consider the Amish. The Amish believe in living without connection to plumbing or electrical grids. It is illegal in the City of Duluth to occupy a building that is not connected to utilities. Further, the Amish believe in utilizing horse-drawn carriages for transportation. This also is not allowed unless a special permit is issued, as in the case of the tourist carriage which operates in the Canal Park and East Downtown areas.

What about the Muslim woman who wishes to wear a hijab when getting her photograph taken for her driver's license? No one would dispute her right to that, so long as her facial features are identifiable and the license provides an adequate likeness for the official criteria to be met.

The vast majority of Americans have no problem with civil gay marriage. It is the law of the land, it is right for the government to grant the same rights and privileges to every couple, but to demand that someone bless any marital union against their will, or to force them to participate in any ceremony that runs counter to their religious beliefs, especially tenets that go back thousands of years, is tyranny.

The Supreme Court's decision is expected early next year.