If you’re trying to justify Jack Phillips’ refusal to sell a wedding cake to a same-sex couple, you have to be pretty creative, especially when Colorado law plainly says a bakery can’t discriminate against gays.
How to do this? Phillips’ supporters and lawyers are bending backwards, sideways, and forward to present the baker as a devout Christian “cake artist.”
That way, they can say his bigotry falls under the First Amendment’s protections of freedom of expression and religion.
Here’s how it’s done, as illuminated in PR materials produced by the ultra-conservative Alliance Defending Freedom (ADF), which will argue before the U.S. Supreme Court Dec. 5 that Phillips’ guilty verdicts by multiple Colorado courts should be reversed.
In his kitchen at Masterpiece Cakeshop, Phillips “usually has his hands pretty full with all the artistic elements of running his Denver cake shop–baking, icing, decorating,” according to a cover story last year in ADF’s magazine, Faith and Justice.
“Masterpiece implies the artwork aspect, where we take the different artistic tools and colors and create artwork,” Phillips is quoted as saying. “And it’s definitely a cake shop, not a bakery, where you come in and just by donuts. …it’s a place where you get a cake that’s art.”
An ADF promotional video portrays Phillips as a Christian artist who’s fighting for his “right to create art in accordance with his convictions.” He bakes “cake art” says his attorney, as if cake art is part of reality as we know it.
Baking is “just something I’ve enjoyed being able to do in a way that honors my God,” Phillips says in the magazine of ADF.
And in an absurd example of transparent PR coaching, Phillips doesn’t even use the word “bake” or “cook” when he says in an ADF video that a same-sex wedding “is not an event I can create for.” (In reality, he would sell a cake for the event.)
I don’t doubt Phillips’ sincerity for his religion and his love of fine baking, but have you ever seen a more bizarre contortion to justify discrimination against LGBT people than this portrayal of the embattled baker-as-god-fearing-artist?
Still, Phillips’ case can make for great discussions about religion, art, and discrimination. But it’s really pretty simple: The First Amendment shouldn’t be used to allow discrimination by bakers, decorators, or “creative professionals,” as ADF describes florists, photographers, and others.
If a baker is allowed to discriminate, where does it stop? As attorney Dale Carpenter has pointed out, what about the cab driver who might refuse to give a same-sex couple a ride to their wedding? A chef, whether he considers himself an artist or not, who decides not to grill a perfect steak for an LGBT couple on their anniversary outing to a restaurant?
You can go down multiple rabbit holes, but at the end of the day, there’s no excuse, religious, artistic, or otherwise, for discrimination at a retail bakery when state law prohibits it, even if the owner decorates the cakes by hand with three brushes and five kisses. It doesn’t matter.
A New York Times article this week underscores what’s really going on in the big picture with all the artsy language from the ADF spin machine.
“The First Amendment has become the most powerful weapon of social conservatives fighting to limit the separation of church and state and to roll back laws on same-sex marriage and abortion rights,” the Times reported in outlining how ADF, which is on the hate list of the Southern Poverty Law Center, has led a worldwide battle, mostly in the courts, against abortion and LGBT rights.
“Alan Sears, one of the founders of [ADF] and its longtime president until recently, wrote a book in 2003 with Craig Osten titled ‘The Homosexual Agenda’ in which they described possible consequences of same-sex marriage. ‘Why not two men and three women, or two men, one woman, and a dog and a chimpanzee?’ the book said. ‘This means marriage will be no better than anonymous sodomy in a bathhouse.’
How the alliance is approaching the case of the Colorado baker, Jack Phillips, is an illustration of its evolving public relations strategy. Gone are the fiery denunciations of gay men and lesbians as sinners and reprobates.”
A concurrent ADF strategy in its campaigns to allow discrimination appears to be to whip up support from religious allies and ADF supporters themselves by arguing that Christians like Phillips are the ones under attack, not the gay people Phillips actually discriminated against, as determined in rulings by Colorado courts.
“What we’ve seen since the same-sex marriage decision from the Supreme Court is that achieving that significant legal victory is not even close to enough for the other side,” said ADF lawyer Tedesco, who’s the director of the organization’s “conscience initiatives,” in the group’s magazine. “They need forced acceptance and celebration of same-sex marriage to be satisfied. If you’re not willing to affirm same-sex marriage, then you ought to be silenced. And that means put out of business.”
You’re silenced because you can’t discriminate against a gay couple at your retail business? That’s crazy, even if the convoluted argument for it succeeds in taking PR for a bigoted baker to an art form.
But like all the head-spinning talk about God-and-the-art-of-cake-baking, the canard about being silenced is a construct designed for legal briefs.
If you violate Colorado law and discriminate against gay people by refusing to sell them a wedding cake, you wouldn’t be silenced, just as you wouldn’t be silenced if you discriminated based on gender or race. You could express your bigoted views, practice your religion, and make art.
But the state of Colorado would stop you, narrowly, from selling cakes, as it’s done to Phillips. And that’s a good thing.
This opinion piece originally appeared in ColoradoPolitics.com.