My Response to Friends Who Believe Supreme Court in Masterpiece Cakeshop Ruled ‘in Favor of Discrimination’
June 5, 2018
Background: You’ll have heard that yesterday the Supreme Court came out with its much anticipated decision in the big religious-freedom case Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission et al. A Christian baker in Colorado is happy to sell cakes or any other product to all customers (including homosexuals) for any other purpose, but declined to make a cake to celebrate the “wedding” of a same-sex couple. The left now teaches that such dissenters must be forced to conform, or put out of business. The Supreme Court yesterday disagreed, ruling in favor of the baker.
I understand that our left-leaning friends are greatly dismayed, and I understand why and sympathize with their reaction. They feel that this is no different from a diner or hotel refusing to serve black people, and they feel that the government must take action to right this wrong. I disagree. Here’s what I say to my left-leaning friends to try to explain a different way to look at it.
Hypothetically what if there were a Christian customer who asked for a cake with a message on it that affirmed that customer’s belief in traditional Christian morality as to marriage and sexuality? Do you think the government should force bakers who didn’t agree with the message to write it on the cake?
It’s kind of a silly hypothetical, but it’s kind of a silly law. Any homosexual couple could find any number of other bakers who would be more than happy to make exactly the cake they want for exactly the purpose they want. I am at a loss to see why either those customers or society would be better off if the government instead barged in and tried to force the baker who least wants to be part of that transaction to be the one to bake the cake.
Anyway my “hypothetical” isn’t hypothetical; it was several prior actual cases, which the Supreme Court justices discussed yesterday in their opinions in this case. Among other places, starting at the bottom of page 14 of the document (page 17 of the PDF), the court notes “the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.
“. . . on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. . . .
“The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell ‘birthday cakes, shower cakes, [and] cookies and brownies,’ App. 152, to gay and lesbian customers as irrelevant.”
In other words, the Colorado government respected other bakers’ selective refusal of service (as to specific cake orders for specific purposes) based on their secular convictions, but the Christian baker who did the same based on religious convictions must be forced to bake the cake or put out of business?
Or, as others have put it:
2005: Live and let live, it doesn’t affect you, why would you be against changing a law that only affects others?
2015: Bake the cake or we’ll put you out of business.
I think the big picture is, If we as a society agree that we can’t manage to interact with our fellow citizens (in personal or commercial relationships, either one) without the federal government always coming in and mediating those relationships for us, then the outcomes in particular cases will sometimes go in favor of the party you sympathize with more, sometimes the one you don’t. In such a system, by definition, we can’t all win; we all have to lose, on average, half the time.
For example, consider this hypothetical: A transgendered person (for purposes of the hypothetical, let’s say a man who identifies as a woman) asks a business that does waxing and hair removal (only on women) to wax his private parts. Suppose that the business is small and the only employee who would do the waxing is a Muslim woman whose religious beliefs and practices prevent her from touching the body (especially the private parts) of men who are not her husband. She and the business refuse service. If the customer sues, what should the result be? What do you wish would happen in this case?
From my point of view, both answers are wrong. At that point, we’ve already decided that we can’t just peacefully interact with each other without constantly calling in the leviathan state to act like our parent and play the referee; we all lose.
As you’ll have guessed, of course this one isn’t just hypothetical, either; it happened in Canada earlier this year:
For more on this case, consider Ben Shapiro’s fast-talking and pugnacious but pretty good analysis of the decision and its reasoning.
Enjoyment and Contemplation 
June 5, 2018 at 10:22 AM
So personal responsibility and a thick skin is the alternative to Leviathan Mediation? Or … ? Just thinking it over.
June 5, 2018 at 11:57 AM
Reblogged this on Head Noises and commented:
Great quote:
Or, as others have put it:
2005: Live and let live, it doesn’t affect you, why would you be against changing a law that only affects others?
2015: Bake the cake or we’ll put you out of business.
Unexpectedly.
June 5, 2018 at 3:15 PM
It’s a slight tangent, but much of the commentary on this case is outright disturbing. More than half of the comments I’ve read (on Facebook, New York Times articles, blogs, etc.) seem to focus on the morality of an individual’s personal position on same-sex marriage, and seem to suggest that the Masterpiece opinion should have relied on a correct moral analysis. I.e. any personal misgivings about same-sex marriage are pure bigotry and the Court therefore got it wrong; or marriage is between a man and a woman and the Court therefore got it right.
I don’t expect thorough legal analysis from the amateur commentariat, but the illiberal impulses, flawed assumptions, and outright ignorance of our Constitutional order that these comments reveal are just plain scary.
June 5, 2018 at 3:44 PM
I agree. One of Jonah Goldberg’s favored formulations these days is “the right to be wrong”, but whatever you call it, it does seem as though our society is losing the understanding that it’s OK for people to have different opinions on things or run their lives in different ways, that the government doesn’t have to try to force everyone to think correctly and feel correctly.
Which I agree is pretty scary and disturbing, come to think of it.
June 5, 2018 at 4:00 PM
It’s part and parcel of what I call the “Jean-Luc Picard” philosophy of governance: as soon as one can describe the way things ought to be, the state must bring its power to bear to “make it so.”
June 5, 2018 at 4:12 PM
But he’s so smart and bald and French-or-English-sounding, and he’s some kind of amateur archaeologist and philosopher in his spare time; don’t you think we’d all be better off if we just appointed someone like him philosopher-king over us?
June 5, 2018 at 4:47 PM
The biggest problems with attempts at heavy-handed social engineering are not typically found in the vision of the engineers, but where the rubber hits the road. For example, I’m convinced that most of the drafters and signers of the Indian Removal Act of 1830 sincerely believed that they were acting in the best interest of the native peoples subject to the Act. The result, of course, was the infamous Trail of Tears.
What’s the old saying about the road to hell being paved with good intentions?
Most people prefer not to have to think too hard about all the variables and unknowns in whatever plan they devise, and simply assume a smooth transition into their vision as soon as those in power elect to “make it so.”
June 5, 2018 at 3:53 PM
“I don’t expect thorough legal analysis from the amateur commentariat . . . .”
I guess that’s part of what makes Ben Shapiro a great combination (not that I agree with him on everything, nor would expect to, but I think he makes great points and offers good and interesting analysis)—law degree from Harvard, interest and broad reading in philosophy and culture, and a conservative religious person’s sense of priorities and humility about the whole enterprise (of government, and also of his own commentary). I only recently started listening to him, but in another of his recent podcasts, he had a great anecdote—his first week at Harvard Law School, then-dean Elena Kagan said something like, You guys are the masters of the universe, you’re the best and brightest and you’ll be the ones who make the rules and run this country, and Shapiro’s reaction was something like, Isn’t that kind of how several of the great evils in history started?
https://www.dailywire.com/podcasts/30288/sunday%C2%A0special-ep-1-jordan-b-peterson
Which I guess is pretty related to this discussion after all.
June 9, 2018 at 9:14 PM
The Christian baker was intentionally picked, even though there were other bakers in the area who would do as asked. The couple deliberately selected this baker in order to file a lawsuit.
This is a deliberate effort to use force of law to intimidate or destroy the baker on the grounds of his Christian beliefs.
Nor does ‘discrimination’ enter into the matter. The refusal to ‘provide service’ was NOT based on the plaintiff’s lifestyle, but on the baker’s Christian inspired decision to not be even a peripheral part of a homosexual ‘wedding’.
Which the left cannot abide. Thinking which does not conform to the leftist agenda.