Courts: Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission

On Monday, the Supreme Court announced that it will hear an appeal from a Colorado baker charged with violating a Colorado law stating a business open the public cannot discriminate based on sexual orientation. The ‘cake artist’, Jack Phillips, had refused, ‘politely’, to make a wedding cake for a same-sex marriage couple because of his ‘sincere’ religious beliefs.

Due to the always enthralling topic of religious liberties, the case promises to be a headline act in the Court’s 2017 term. This particular case joins a menagerie of similar encounters between gay couples who refuse to compromise on something as vitally important as decoration, and businesses who argue they should not be forced to decide between their 21st century business, and their 1st century worldview.

Over the last few years the Supreme Court has ruled in favor of gay rights consistently; with the 2015 decision providing a constitutional right to same-sex marriage being the hallmark. Despite these victories, the Court has also maintained that businesses run by religious individuals may find avenue for exemption. The 2014 ruling which allowed some companies to not provide free contraceptive coverage for their female workers was one such occasion.  After all, it is not like the political power to encourage animalistic styles of pregnancy jeopardizes the society as a whole, no, it only jeopardizes the organized delusions of religious fanatics.

In terms of the Court - President Trump’s staff pretended not to hear the President’s request to nominate Judge Fudge, instead going about the business by themselves and thus Neil Gorsuch will fill the seat left vacant by the death of Antonin Scalia for the Court’s next session. The Republican, Colorado native and Constitutional originalist’s ascension means the all-important vote in this case will likely come down to Justice Anthony Kennedy. In the past, Kennedy has voted in favor of both gay rights, and religious liberty.

This case presents the opportunity to set a dangerous precedent – namely that someone’s religion can be used as an exception to civil rights laws. For instance, what could stop a Pastafarian of the Church of the Flying Spaghetti Monster from refusing to serve spaghetti to anyone who hadn’t been “Touched by His Noodly Appendage”?   

Indeed the case represents the most difficult cake related decision since Eddie Izzard’s famous Cake or Death dilemma. Mr. Phillips is unlikely to create a cake celebrating his and Izzard’s affinity for baked treats, although I doubt Mr. Phillips could find the relevant scripture to support his undoubtable umbrage toward someone of Izzard’s ‘appearance’.

Masterpiece Cakeshop, Ltd:

Mr. Phillips’ argues that the First Amendment’s protection of free expression and religious freedom override Colorado’s anti-discrimination law. In their brief to the Supreme Court, Mr. Phillips’s lawyers suggest that the Colorado law under which Phillips has been charged (CADA), should not “ban Jack Phillips’ polite declining to create a cake celebrating same-sex marriage on religious grounds,”. The brief predicates this notion by making the point that CADA would not apply to “1) an African-American cake artist 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.”

Phillips’s faith requires him to use his “artistic talents to promote only messages that align with his religious beliefs.” This is of course, a reasonable position to take. For instance, we wouldn’t ask a cake artist who was a Harry Potter fan to make a cake featuring the name Voldemort; after all, the text makes it quite clear, with a good amount of exceptions and contradictions, that he should not be named.

Mr. Phillips’s lawyers also pointed out, quite reasonably, that the two men who brought the charge, Mr. Mullins and Mr. Craig, could have bought a cake from another baker, or even “easily obtained a free cake with a rainbow design from another bakery.”

Colorado Civil Rights Commission:

 David Mullins and Charlie Craig planned to marry in Massachusetts, and hold a reception in their home state of Colorado. The event called for a cake, and considering the Rocky Mountain High Colorado is on, this shouldn't have been difficult. Nevertheless, after Mr. Phillips refused their business, the couple filed discrimination charges and won before the civil rights commission and the courts.

Mr. Mullins argues “businesses should not be allowed to violate the law and discriminate against us because of who we are and who we love...This has always been about more than a cake.” Indeed, the couple’s lawyers wrote in their brief that “it is no answer to say that Mullins and Craig should 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.”

Clearly, for both parties this is a principled matter. Mr. Phillips believes that he should not have to provide his wears to a portion of the market that violate his religious beliefs. Mr. Phillips’s understands love to be the sadistic guilt trip provided by a celestial dictator, or his fundamentalist rabbi son. As such he would prefer not to bake a cake for a sinful and absurd love existing between two human beings. And indeed, in principle, a citizen shouldn’t be made to do something he doesn’t want to do, especially, as in a J.S. Mill sense, no harm is done. On the other hand, Mr. Mullins and Mr. Craig believe in the principle of equality, and as such, cannot stand to be denied an everyday transaction because of something outside of their control, which is to say, the form of their love.  


It is a curious fact of American life that being sincere is more popular than being right. Indeed the aim of opinion in this nation does not seem to be what can be qualified by proof and reason, but what can be sanctified by sincerity. It seems to me that a claim of sincerity should always be met with doubled scrutiny, for sincerity in an opinion is the very least one should expect; indeed allusion to said sincerity could only mean the opinion is vacant of anything else in support of it.

Mr Phillips seeks to invoke the First Amendment but unfortunately for him, it is not on his side. The First Amendment provides freedom of religion in as much as it provides freedom from religion. In baking terms, the First Amendment allows everybody to have their own cake, but you are under no obligation to eat their cake too.

Another aspect of Mr Phillips’ quarrel is a notion present in many debates across America - that there are simply too many laws. Anti-Government overreach been central to conservative manifestoes for decades because it resonates with people as an infringement on freedom. The GOP has of course always been as legislatively active as the Democrats, if not more so, but their voters overlook such things. In a way, I too am amiable to this line of thinking, but I can only trust myself to behave morally in a world with less laws; and I would not wish to live in a lawless world made boring by its clone army of Blakes, despite how harmless the society might be. Indeed, this is the reason more Epicurean forms of community and government haven’t proliferated – most people take too long to get over themselves for such ideas to spread with any ferocity.

The sense of overbearing laws is a universal experience. It was Tacitus who remarked: “As we once suffered from crimes, so now we are suffering from laws.” (Annals, III, xxv) I even recall from my youth the Australian magnate Kerry Packer once suggesting (during a Parliamentary inquiry into this activities) that perhaps every time the government passes a new law they should repeal an old one. But of course there can be no limit set on the amount of laws, for laws are responses to the infinite variety and diversity of humans and our actions.

What this comes down to was best expressed by the philosopher Montaigne in consideration of this very problem: “Nature always gives happier laws than we give ourselves.” (Essays, ‘On Experience’) On the surface it might seem as if this now rather long-winded philosophical digression teases out a conclusion in Mr Phillips’ favor, as he is being subjected to an overbearing law. Unfortunately for him, in this case it is not the laws of the land which are overbearing - it’s his laws. The law of Colorado in this case only seeks to protect what nature has already declared – there are various forms of love. Mr Phillips, who takes his archaic laws from Leviticus, is the one who’s laws seek to abrogate the nature we have no choice but to be happy with; and they’ve been doing it for millennia.

On an individual scale, it is unfortunate Mr Phillips will have to violate his ‘sincerely held religious beliefs’. But that is only because he sincerely believes in discrimination. The question never occurs to the religious - just why they believe in a religion that discriminates in the first place? Yes a same-sex couple could buy a cake elsewhere, but by the same token, Mr Phillips could move to Uganda where his discriminatory beliefs are reflected in law.

Strangely, I don’t think Mr. Phillips will move to Uganda, perhaps it has something to do with the legitimate freedoms available in the U.S., and not false freedoms like the freedom to discriminate. Interestingly, it was the freedom to discriminate that brought the Pilgrims on the Mayflower, and it has taken centuries of bloody work to counter the damage of their piddling sectarianism. Bloody work that continues to this day, and in this very case.