Religious belief is often used as a veil for discrimination. Islam and the Catholic Church for a millennium competed in treating each other’s infidels as lesser human beings. Too many parts of Dar-al-Islam (and Dar-al-Trumpland) still do. American slave-holders for four centuries justified their brutality by cherry-picking the Bible for color-coded chains, just as the Ku Klux Klan has done since Reconstruction. There’s a direct line from the protestant reformer Martin Luther to Hitler’s holocaust. As the historian Diarmaid McCulloch wrote in his book on the Reformation, “Luther’s writing of 1543 is a blueprint for the Nazis’ Kristallnacht of 1938. It recommends that in retaliation for Jewish obstinacy, synagogues should be burned, Jewish literature confiscated, Jewish teaching forbidden, and vengeance taken for the killing of Christ.” And 1938 was only the beginning.
It’s a depressing history. Whenever anyone inhales religious values to justify any kind of exclusivity or superiority, discrimination exhales. These days, the same revolting arguments once leveled at blacks, Jews, this or that religious denomination, are leveled at gays, lesbians and transgender people.
In July 2012, Charlie Craig and David Mullins walked into Masterpiece Cakeshop in Lakewood, Colo., to order a wedding cake to celebrate their marriage. Jack Phillips, the owner, told them he’d make them any baked goods, just not a custom-made wedding cake. (In other words, you can ride but just go to the back of the bus.) Phillips believes he would “displease God by creating cakes for same-sex marriages,” according to court documents.
Charlie and David were not asking Phillips to create anything suggestive. They were not even asking him to write a message he disagreed with. All they wanted was a cake, the conventional sort inspired by a catalogue of traditional wedding-cake concoctions. Phillips refused. They sued. A case that should have been settled eons ago ended up before the Supreme Court this week, with a Trump administration lawyer naturally in favor of discrimination.
Phillips’s lawyers knew they had no case on equal protection grounds. That’s how the Judeo-Christian brigades lost the gay-marriage case a few years ago. They invented a craftier strategy. Cake as art. Cake as speech. It’s part of that broader assault on the gay-marriage decision, to undermine it by a thousand seemingly constitutional cuts just the way Obamacare was bled dry after winning its initial battles at the Supreme Court. The court opened that door (against both Obamacare and gay marriage) with its Hobby Lobby decision, carving out a purely religious exemption for companies that think their CEOs’ dogmas should peep around employees’ ovaries and spermatozoa. The calligraphy of theocratic mullahs is all over that decision. It does not make sense in a secular republic.
But in a hyper-legalistic society the approach doesn’t have to be factual, moral or tenable on any human rights or secular grounds. It doesn’t have to have more than token applications to real life, if that. For Oliver Wendell Holmes, whose approach unfortunately still commands more influence than his style, it didn’t even have to have even that. “The life of the law has not been logic: It has been experience,” he famously said before spending a lifetime on the court applying a form of scintillating but heartless logic, the equivalent of Bach’s Goldberg Variations on a mechanical piano. How else would Antonin Scalia, that other heartless stylist, have gone from a Lothario of textualism who ridiculed fellow-justices who read rights into the Constitution to the conjurer of the 2008 Heller decision on gun rights? “Never mind the texts we are supposedly construing,” Scalia had written derisively in 1997, “we will smuggle these new rights in.” His Heller opinion smuggled in an individual right to bear arms with the same freak acrobatics the Dred Scott decision used to deny the right of citizenship to a natural-born American just because of the color of his skin.
I happen to agree that there absolutely is an individual right to bear arms. But that right is absolutely not in the Constitution no matter how many times you imagine Charlton Heston reading the Second Amendment with the intonations of Marilyn Monroe’s Happy Birthday Mr. President. Scalia was successful more because of astrology than constitutional law. The stars aligned in the shape of a 5-4 constellation. The Constitution didn’t. And in a hermetic legal system whose acres of precedents is itself a cherry orchard, anything is possible. It doesn’t need a good argument. It needs the right five robes. Same goes with the ongoing battering of the church-state wall. When those robes are made of the same fiber as turbans, the rest is easy.
And so, cakes as artistic expression. Phillips considers himself an artist. He makes a strong argument that speech may not be compelled: you can’t force someone to say something and still pretend he has free speech. At that point it’s not his speech but yours. That’s assuming that his cakes are speech. It’s a stretch: you can’t eat speech, and I never knew food to be a protected species under the First Amendment. Then again we live in a country where corporations are considered people. He had room to maneuver. His lawyer’s argument to justices this week made all sorts of hair-splitting distinctions that in the end made Phillips an artist of first amendment sophistry more than of wedding cake “sculptures.”
“Certainly not all cakes would be considered speech,” his lawyer said. So Phillips is the arbiter of art? Seems so: He considers his sculptures artistic expression contributing to a wedding, but for some reason work of hair stylists or make-up artists or even chefs is not artistic expression. Those lesser toilers would have to provide their services to Charlie and David, no questions asked. It’s a little too convenient, too precious, and it drew an appropriately disbelieving expression from Justice Kagan: “Whoa. The baker is engaged in speech but the chef is not engaged in speech?” It got worse: Phillips’s attorney said she did not consider architecture a form of art protected under the First Amendment, either. “So in other words,” Justice Stephen Breyer said, “Mies or Michelangelo or someone is not protected when he creates the Laurentine steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now that–that really does baffle me, I have to say.”
But for argument’s sake let’s grant that Phillips is a cake artist, without getting further lost in his aristocratic hair-splitting.
By opening a store in a public venue and agreeing to the rules of retail under Colorado’s anti-discrimination law, which also enable Phillips to conduct business in a safe and civil manner, Phillips, whether artist or not, gives up at least some of his absolute rights to free speech, if barely so, the same way that when an employee works for a company or a student attends a public or private school, some of those rights are surrendered at the door. Instead, Phillips wants to carve out the equivalent of retail’s gated community: some of you are welcome, some of you not. It doesn’t work that way in the public square. Or shouldn’t, because it’s no different than placing a sign in the window that says: we don’t serve gays. (The fact that he is willing to serve them anything but custom-made cakes is a difference à-la-meringue.)
Put it this way. J.S. Bach used to sign most of his scores with, “Soli Deo gloria,” Latin for “Glory to God alone.” His religious convictions are unquestioned. Neither is his art. If he was cantor at a Lutheran church in Lakewood, Colo., and Charlie and David were to go to him to ask that he perform at their gay-wedding ceremony, Bach would have every right to refuse. If they asked him to write them a piece of music for their wedding, he’d have every right to refuse. But Bach had a couple of dozen children and was always hard up for money. So let’s assume he opened a music shop in Lakewood and pasted in his window a handsome sign: “Cantatas For All Occasions.” Charlie and David go in and ask for a cantata for their wedding–not one off the shelf Bach had already written, but one for them alone. Would he have the right to refuse?