The argument is a specious one — the guaranteed right to free speech should prevent a Christian baker from being compelled by the government to make a wedding cake for a gay couple.
But like any deception, this one falls apart upon close examination, and we hope the U.S. Supreme Court justices see through the initial appeal of such reasoning when they hear oral arguments Tuesday in a Colorado case that has been debated for five years.
This board is among the most passionate advocates of free speech, no matter how ugly the content of the expression. Want to hold a Ku Klux Klan parade? By all means, the government must treat you the same as organizers of the Parade of Lights.
This is a case, however, not about marches and banners or statues and public art, it is a case about goods and services provided to the general public from a storefront open — in theory — to all comers.
That’s where the argument being made by Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, and his attorneys falls apart. Phillips, while certainly an artist creating beautiful works, is primarily a businessman selling his talents to the general public.
In 2012 Phillips refused to bake a cake for the wedding of Charlie Craig and David Mullins. The couple filed a complaint with Colorado’s Civil Rights Commission and Phillips was ordered by an administrative law judge to make cakes for same-sex couples. Phillips argued his cakes were a form of speech and he could not be compelled by the government, under his First Amendment rights, to make a cake that expresses something he is religiously opposed to.
We disagree.
Certainly cakes can be a form of art, and we’d go so far as to say a cake can be expressive.
But on measure we find a cake, even an elaborate wedding cake, to be less an expression than it is a consumable good. Phillips wasn’t being commissioned to use his artistic skills to create a 20-foot-high mural honoring gay pride.
Colorado’s Anti-Discrimination Act, since 2008, has included sexual orientation in a list of protected classes. It was an important inclusion, given that the gay community historically has suffered discrimination.
Phillips’ refusal to bake a cake for Craig and Mullins proves that the discrimination is real and current and that individuals are in need of such protections when looking for housing, employment or good and services.
We fear a ruling in favor of Phillips would allow those opposed to same-sex marriage to begin refusing services to gay couples. It could also open up other discrimination. A Jewish photographer, claiming free speech, could conceivably refuse to photograph a wedding because the couple is having a Christian ceremony. A florist harboring prejudice after losing a son at war could deny arrangements for the funeral of a man born in Iraq. A dressmaker with Nazi sentiments could refuse to make garments for a woman attending an Anti-Defamation League gala.
Such prejudices are ugly and harmful to our society and laws — whether it’s the federal Civil Rights Act of 1964 or one of the many state laws that have been developed across the nation — are important guarantees of the fundamentally American principle of equality.
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