(Promoted by Colorado Pols)
One of the craziest aspects of the bakery case, in which baker Jack Phillips discriminates against a gay couple who want to buy a wedding cake, is the contortions that Phillips’ backers have gone through to spin the bigoted baker into an “cake artist” who makes “cake art,” as if such a thing exists int the real world.
I’ve outlined examples of how they are doing this in an opinion for ColoradoPolitics today:
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 buy donuts. …it’s a place where you get a cake that’s art…”
And in an absurd example of transparent PR coaching, Phillips doesn’t even use the word “bake” or “cook” when he says in a 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.)
The sad part is, too many people are taking this portrayal of the embattled baker-as-god-fearing-artist seriously.
But you can’t glaze over Phillips’ religious bigotry, even if you use the sweetest glaze on the shelf.
And if a baker is allowed to discriminate, where does it stop? As 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 who decides not to grill a 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.
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The whole "cake artist" thing goes hand-in-hand with their theory of the case. Thanks to a 1990 Supreme Court majority opinion penned by none other than Antonin Scalia, religion-neutral laws of general applicability are nearly immune from challenge under the Free Exercise Clause of the First Amendment. Unless they can persuade 5 justices that the 1990 case was wrongly decided and should be overruled, the baker's best chance of success lies in its Speech Clause claim. Characterizing what the bakery does as expressive conduct subject to Speech Clause protection is essential to that claim.
My understanding is that the record showed he said "no" to the couple before even discussing what to put on the cake. So it's not exactly compelled speech if he refused service before being asked to actually express himself. He's a bigoted baker, hiding behind his religion.
I agree, spaceman, and I thought the Colorado Court of Appeals panel that decided this case did a first-rate job with the compelled speech argument. However, it's not the slam dunk many people seems to think it is.