Readers may recall the case of Jack Phillips, the Christian cake shop owner from Colorado who went to the U.S. Supreme Court in 2018 to defend his freedom not to be compelled to design and bake a cake for a gay wedding, after having been penalised by the state of Colorado, forced to shutter that part of his business and ordered to submit to a re-education programme. Masterpiece Cakeshop v. Colorado Civil Rights Commission ended in a 7–2 judgement that was widely celebrated by Christians (but not just Christians) as well as by free speech advocates (but not the ACLU). However, the case was decided in Phillips’ favour on relatively narrow grounds, because the Colorado Civil Rights Commission, in making their decision, had been foolish enough to put on the record “a clear and impermissible hostility toward [his] sincere religious beliefs”, leaving open the underlying free speech question – whether or not Phillips or any business owner could be compelled to express support for gay marriage (or any other viewpoint they might find offensive) – in the design of cakes or any other bespoke product. That was, until the inevitable case of 303 Creative v. Elenis, which is currently being heard by the Supreme Court (oral arguments were on Monday, Dec 5th).
Since these two cases are so similar, it’s worth remembering some of the background to the original Masterpiece Cakeshop case. Phillips was approached by a gay couple who tried to order a pro-gay marriage cake from him, seemingly in the knowledge that his religious beliefs would oblige him to refuse, and despite the fact that the town of Lakewood, Colorado (population 150,000+) was home to other cake shops. In fact, as Phillips’ said, “There’s a bakery across the street that would make it for them.” One wonders whether a Muslim-run cake shop might well have refused the request on similar grounds, but of course it would have been rather more difficult for the gay couple to garner the kind of full-throated support from the political left that they got in this case if it had been a Muslim business. Other, perhaps more difficult questions, might have been raised.
But Phillips’ woes didn’t end with his first six-year-long case. In fact, he’s been a repeat target. On the very day the Supreme Court agreed to hear his case in 2017, a trans activist asked him to bake a cake “to symbolise a transition from male to female”, and also allegedly made another request:
I’m thinking a three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9″ black Dildo. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake.
This is a bit like asking a Muslim baker to depict Muhammad, but Phillips could be relied upon to play by the rules, instead of getting all jihadi. So when the trans activist sued Phillips, he rang up his lawyer. The activist then won in state court, and Phillips had to take it to the Colorado Court of Appeals, where it now sits. This is surely very pleasing to the activist, who allegedly admitted that she would have kept ordering provocative cakes until the courts took her case, giving the whole thing an air of barratry and turning Phillips into a “professional defendant” à la the tragic Sherman McCoy in The Bonfire of the Vanities. Maybe those on the left would consider this cruel, were Phillips a fox or a rabbit, but as the ACLU’s top lawyer David Cole argued in the New York Times – and as is being argued in the current Supreme Court case with 303 Creative – not using one’s creative talents to support gay marriage is basically like racism, so it’s apparently fine. (Never mind that Obama and Biden opposed gay marriage not too long ago, and in fact practically everyone did for millennia.)
I’m certainly not the first to remark that the gay and trans rights movements, which previously promoted tolerance and decency, did so right up to the point when they won full equality, at which point – to quote a U.S. commentator – “they started going house to house, shooting the survivors”. And to paraphrase another line about dogs and cats, “It’s not enough that gay and trans rights should win. Our opponents (usually Christians) must also lose.” As Thomas Sowell has observed, those claiming to represent minority communities often end up inventing problems to justify their existence, and often hurt those communities they claim to be supporting by making perpetual angry victims of their own followers.
But so much for Jack Phillips’ battles. The current case concerns 303 Creative, a website design company owned by Lorie Smith, who wants to offer custom website design for affianced couples to inform their guests about their upcoming nuptials. It should be noted that she hasn’t and wouldn’t refuse customers because of their sexual orientation, and has worked with LGBT customers on other projects in the past, but with this venture she simply doesn’t want to use her talents to create gay wedding websites – again on the grounds of religious faith and doctrine. It is not about the customer and their sexual orientation, but about what message she might be asked to create. Given her stance, she knows what would happen the minute she opened for business, so she hasn’t waited to be attacked, and has instead taken “pre-enforcement” action. Otherwise, this case is almost identical to the Masterpiece case: a Christian in Colorado, represented by the Alliance Defending Freedom and with free-speech organisations like FIRE and right-wing/libertarian organisations backing her up, against the officials of the Colorado Civil Rights Commission, supported by those on the left including the Biden administration and the ACLU. The same arguments are once again being advanced by both sides.
The left’s argument is based on “public accommodation” grounds. Public accommodation laws require certain businesses and places – classically hotels, as in the U.S. Civil Rights Act 1964 and the U.K. Race Relations Act 1965, but also websites and other goods and services providers – to be open and accessible in a non-discriminatory way to anyone irrespective of race, religion or other protected characteristics. In the U.S., these laws go back to 1865, but they’re akin to the much older common law regarding non-discrimination in respect of, classically, ports (meaning a port owner couldn’t refuse a ship entry to a port, nor demand higher fees for certain ships) and then later other areas like railways and telecommunications, where monopoly or quasi-monopoly power might be abused. In the same way that it was not in the public interest to allow shipowners to be ripped off or excluded by a hostile port (“any port in a storm”), it’s not in the public interest to allow hoteliers to say “No Irish, no blacks”. The same applies to products sold in shops or online: one simply can’t refuse a customer on the grounds of race, sexual orientation and so on.
As regular readers will know, similar issues have recently arisen in respect of the Free Speech Union, which was cancelled (and later reinstated) by PayPal for vaguely-stated but obviously political reasons, and on account of which the FSU is campaigning to reform the law to prevent financial service providers doing this to others in future. But why is there a sound public interest in preventing PayPal refusing customers, but not in compelling someone to make a pro-gay marriage cake or website?
The answer is fairly straightforward, and has everything to do with creative expression. Were Lorie Smith to be compelled to put her creative talents towards designing and building a website for events or causes she finds distasteful or offensive (rather than just the ones she actually believes in), there would be nothing to stop government compelling, for instance, a black freelance copywriter to offer his talents to all-comers, including racists, Nazis and the Ku Klux Klan, who might ask him to write pieces extolling all manner of horrors. (There would be a lot of trolling.) The difference with PayPal (and other kinds of goods and services providers) is that in the case of selling a generic, pre-made product (like a stay in a hotel room), there are only negligible demands on the dignity and sincerely-held beliefs of the vendor. (Strict libertarians would say it’s not negligible, but that’s beside the point.) So while a white supremacist might not like having to offer a hotel room to a member of the Black Panther Party, for instance, it would require no endorsement of that party and it would serve the overall public interest. That’s the theory. On the other hand, compelling the same person (even if we might find them despicable) to compose and distribute leaflets promoting a Black Panther rally at the hotel would be a weird kind of cruelty. The same would be true, in a more respectable hypothetical, of a Muslim being compelled to speak in support of another religion, etc.
There is a fundamental right at stake, which anyone who has ever been inspired to create anything – in the arts or letters, or in science, or in any other way – will recognise. It is the right to listen to one’s muse, and to follow one’s own passions and calling – or religious faith – even in the creation of seemingly inconsequential works. Would we expect Michaelangelo to have designed the Süleymaniye Mosque, if asked, instead of St. Peter’s Basilica? Would it not be utterly perverse to expect that? As Justice Clarence Thomas wrote in his opinion on the Masterpiece Cakeshop case, not recognising the right of individuals or businesses to express themselves creatively “would justify virtually any law that compels individuals to speak” (such as this one).
I suspect the history of the left gives rise to their willingness to treat creative expression as just an undifferentiated form of labour, similar to washing dishes or cleaning a hotel room. There may be dignity in all forms of labour, but in a free society we should be free to choose that form of labour, and free to use our talents where they best serve. Much, therefore, hangs on 303 Creative v. Elenis for U.S. citizens. It seems likely that, if the lower court’s decision isn’t overruled, the next step would be for states like Colorado and New York to mandate that businesses use the “preferred pronouns” of their customers. The Department of Justice has effectively claimed in this case that it could do so. That would hardly do anything to ease political tensions, and would create a very weird situation where – since vague threats are protected speech under the First Amendment – a business owner could send a very rude or vaguely threatening message to a customer, but have to refer to xe/xim/xer by their pronouns of choice.
What may seem surprising to U.S. readers – who, after all, bask in the glory of the First Amendment – is that a very similar cake shop case has already been heard and decided in the U.K. in favour of free expression. But perhaps it’s not surprising that the case came up, given how interwoven our shared histories still are – both countries having begun to tangle up free speech rights with the often-competing notions of civil rights back in the 1960s.
The case was Lee v Ashers Baking Company, which began in 2014 when a gay rights activist (possibly inspired by Masterpiece Cakeshop) asked Ashers Baking Company in Northern Ireland to produce a cake with the message “support gay marriage” and the logo of a gay rights group – and then sued when they didn’t. Eventually, in a unanimous U.K. Supreme Court ruling, it was held that Ashers did not discriminate against the person (who happens to have been gay, but who might have been straight or even “otherkin”, so far as Ashers knew), and that the bakery was within its rights to refuse to produce a message with which the company disagreed. Notably, Ashers was supported by prominent gay lefties Peter Tatchell and Sir Patrick Stewart, who were both able to go beyond their first instincts about the case, change their minds and recognise that it would be wrong to force others to express their own favourable views on gay marriage.
There may well be gay rights campaigners in the U.S. who object to what Jack Phillips and Lorie Smith are going through (for all I know), but since “[t]wenty mostly liberal states, including California and New York, are supporting Colorado, while 20 other, mostly Republican, states, including Arizona, Indiana, Ohio and Tennessee, are supporting Smith”, the battle lines have clearly been drawn along the usual partisan lines, and the 6–3 Republican/Democrat split in the Supreme Court may end up being the final tally. This is in line with the 2–1 party-line split in the Ninth Circuit transgender beauty contest case, but can be contrasted with the unanimous Supreme Court decision in the Hurley case 27 years ago, which I have no doubt would not be unanimous if it were decided today – not that Justices vote based on party affiliation, but rather because of the differing notions of jurisprudence that have arisen between Republicans and Democrats. Democrat-appointed judges tend to believe in what they wish the Constitution said.
In any case, and since I might never have the opportunity again, I wish to express to our cousins across the pond my greatest sympathies with their current free speech woes in this area, and to offer them the best of British luck.
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I can see both sides of this, but it does seem to rely on the victims putting themselves in harms way to prove a point. If it is the provision of ‘normal’ services like a hotel and restaurant menu, then there is a strong case that you should not deny that service. However, this is the creation of a new item (the cake) to order and the clients wishes, then I think as the ‘creative’ you have every right to tell them to get lost if you don’t want to do it. It is not the baking of a cake, but the expression of beliefs and ideology that you cannot countenance. You might imagine that there are plenty of bakers, some who may be gay, who would be happy to do this regardless. This underlines that our hapless victims aren’t looking to buy a cake, but to create a problem for someone who thinks differently to them.
Either we have property rights if we don’t.
If some filthy homeless bod with his flea bitten mutt comes into your hotel or restaurant, you can see him on his way without the Equality Gestapo descending on you.
So we don’t have the rule of law – law equally and equitably applied.
Thanks for this. I expect it will go 6-3 but curious to see who writes the opinion and what it is based on. Roberts and Kavanaugh might be a bit more circumspect than the other four conservative justices.
They already have legally compelled speech in Canada, which Jordan Peterson was so vocal in warning about the consequences of. Of course he was right.
Should a Queer be forced to make my rosary?
Should queers be forced to repair my roof and affix a large cross near my chimney?
Should a Tranny be forced to repair my Christian pendant?
Should a polygender be forced to bake a Christian themed cake for my wedding ceremony?
Should a Black Muslim be forced to repair my Church steeple?
Should a Black Christian be forced to provide doors for the local mosque?
Should an atheist-shit happenser be forced to provide goods and signage for an Easter procession?
If not Flock off then.
Who isn’t sick and tired of the mentally and sexually ill and perverse cult. Shove it all back up the anal pipe. The sickness reeks.
Meanwhile NATO and Russia appear to be edging towards a nuclear confrontation and our monetary system is in the process of collapsing.
Nero fiddles while Rome burns.
I was always taught in medicine that I had a right to refuse treatment to a patient, unless in an emergency situation, where my personal beliefs/ relationship with the patient may affect the quality of treatment I may provide, as long as I was able to recommend another practitioner.
Could it not be argued that if the baker was “forced” to bake a cake for a client whose personal habits/ lifestyle the baker was opposed to, the quality of the cake may be suboptimal and therefore a referral to an alternate baker would be appropriate?
Indeed. I think I read somewhere (not sure about this), in one of the cake cases, the baker offered to bake and sell the cake, did not want to decorate it as requested, but offered the decoration materials to the customer to do that themselves. This strikes me as more than enough to establish that the issue was not discrimination as such. It was about someone with a chip on their shoulder trying to abuse someone else’s rights, just because the zeitgeist right now is to venerate victimhood. They should remember that the pendulum always swings back.
These stupid, petty actions only serve to turn people against the group these whack jobs purport to serve and represent. As overloaded as courts claim they are, perhaps it’s time to use the laws on malicious prosecution and abuse of process to greater effect.
You mean senna pod and exlax icing?
It’s a sorry state of affairs when these kinds of things end up in a court of law. But let’s forget about the legal system for a moment; we know the legal system often works against societies best interests – we see that time and again. If society would be left to judge then these cases would never even be considered, let alone heard. Why? If people are left to be, without interference from authority, a civil, decent society would organically be built around what is reasonable. Tolerance should not be without limits, and those limits would be based around compromise.
What we have today, and this has been an exponentially growing problem since the 60s, is a number of victim groups achieving their perfectly reasonable goal, but then deciding to shift the goalposts. Moving those goalposts further and further away away from compromise, driven by some narcissistic, ill conceived, mistaken motivation of a twisted idea of revenge. These victim groups are neither reasonable nor interested in compromise, and the law has actually supported their increasingly deranged and antisocial demands.
The question of what is reasonable, and is there willing to compromise, should always sit at the heart of a civil society.
“the legal system often works against societies best interests”
True. However the way the US structured their government with checks and balances was designed to prevent tyranny and to prevent the dictatorship of the majority. The selection of US Supreme Court justices has become highly politicised, I would argue because of the way “liberal” (leftist) justices have used their power to invent rights that the original framers of the constitution and the people who adopted it NEVER intended it to grant. In general the court has tended to extend supposed rights in a leftward direction. The current court IMO is closer to an honest interpretation of the constitution which was actually quite limited in scope – a wise choice. Other matters should be left to the legislature, elected by the people.
Agree that the US Constitution was designed to always place the ultimate power with the people. However, that looks to have been ridden over roughshod in the last couple of years. Back here in good old Blighty we have nothing of the sort, at least nothing that’s taken seriously; the power is ultimately with those that are granted governance by the people. From what I can see though, it mattered not one iota what political system you lived under in the last couple of years, every single one adopted a totalitarian, dictatorship. We must enact change.
I don’t know about cases brought in state or federal circuit courts but the Supreme Court did overturn at least one vaccine mandate, and I think disappointingly left another in place. I don’t recall many, if any, cases that came before them regarding restriction of movement. Perhaps the whole mechanism moves too slowly for that, in general, or perhaps no-one brought the right kind of case and pushed it through the lower courts.
The issue that I see here needs to be considered in a wider context – the division of the populace against itself. A divided populace is more easily governed and controlled.
To stifle growing awareness that elites are perpetuating and increasing their powerbase, lesser issues are thrown like bread to the starving. They fight amongst themselves over the bread rather than those who control its supply.
What is happening here is submission to the judgement of those who control, via the legal system. While fighting for rights and freedoms amongst ourselves, we submit to judgement from an elite class. There needs to be a return to natural law and equitable judgment by peers whether or not a trespass or crime has been committed.
Oh for goodness sake, PayPal is something of a straw man here. The issue with PayPal is that as a financial services provider they should not be interested in the beliefs of their customers as these beliefs are not material to the service being provided. In my opinion, financial service providers need to comply with the law and only deny service when the law tells them to. Trying to conflate this with the creation of an item (cake or otherwise) with which the creator disagrees is quite e misleading, and adds nothing to the argument.
Plenty of garages have refused to repair my Alfa Romeo because they don’t have the right skills etc, and I have the responsibility to find a suitable vendor, not to sue the garage who says they can’t or won’t do it.
I disagree. The matter of the beliefs of their customers might be argued to be material to a financial services company. I’m not sure of the specifics, but I imagine you could find hawala banks that only accept Muslims as customers, for instance. I could imagine other scenarios. It would be of greater relevance, perhaps, to a small closely-held company.
Also, one of the things PayPal said when they closed our account was that we had to remove all their branding from the website. This leads me to think that one of the arguments they’ve made to government is that when they provide the service, their branding is visible on the websites of their customers, so their brand image is at risk. In that sense, they could argue the beliefs of their customers are material, although I’d argue it’s a trivial problem and much less of one if it’s known that these companies can’t exclude people on their political beliefs.
As soon as you accept these specious arguments from PayPal, you are lost. Also a Muslim bank, as any other bank, has the right to accept or decline your business, unlike PayPal who accept anybody then enforce censorship afterwards.
I don’t accept those arguments at all – what I said was that PayPal might or could make them. We don’t know what they’ve been saying behind closed doors to ministers and civil servants. I’m intending to expand on these questions in the future, but speaking of English common law and later US law, there are good precedents for government regulation of monopoly or quasi-monopoly companies (to make them open and non-discriminatory) as being “affected with the publick interest” or as “common carriers”, etc. These arguments are being worked out by the likes of Richard A. Epstein, Eugene Volokh, Christopher Yoo and Justice Thomas as we progress (and there’s currently no solid agreement), but the principle would conceivably apply just as much to payment services as social media platforms.
We’re heading into new territory, and I’m hoping the US will lead the way. Justice Thomas has specifically welcomed a case testing these kinds of theories, and it may well be that if this happens that the effects will ripple out into the UK and Europe if its successful. We may end up in the position where all one would need to do to be immune from stupid EU and UK hate speech laws would be to use a VPN to access social media from the US.
The same constraints that are applied to payment service providers need also apply to the government in its introduction of CBDCs in order that they are prevented from suspending citizens’ access to finance other than by an individual, specific legal order.
Completely agree. Remember that English guy who got all his assets and bank accounts frozen, at the whim of the minister, because he was making videos for the Russians? That kind of thing is terrifying. OK, so he may be a war criminal or human rights abuser for doing that interview with Aidan Aslan in prison that was, we now know from Aslan, done under duress – but that was never proven in court. No-one except Toby stood up for him as far as I know (although I haven’t checked) because what he’s doing isn’t popular, but those are often the most important cases, and where our civil liberties get eroded.
“Get the flock out of here!”
Why CAUSE trouble?
Go to a manufacturer who doesn’t mind your request and stop goading those who do.
Can’t we just be tolerant of each person’s beliefs?
If I were the prospective purchaser of a creative product (cake or web site in this case) I would be inclined to think I would get a better end result if it wasn’t made under duress.
Would you trust a cake made by someone you believed was hostile to you, and who was forced to make the cake for you? Would you dare eat the cake?!
If you were a gay customer buying a cake from a Christian cake shop owner whom you believed had an antipathy towards gay people, would you pray that the cake shop owner was Christian enough not to put anything disgusting into the cake?!
Or would you get the cake from another shop instead?
Wrong question. Should anybody be forced to use their property and labour output for anything?
Are we back to slavery and no property Rights?
I’m fed up of the religious argument, it’s a general Common Law argument, nothing to do with religion.
And if Mr Christian can get an exemption on religious grounds but Mr Atheist cannot, isn’t that discrimination?
The core legal argument is not a “free exercise of religion” argument at all. In fact, religion is purely secondary, but it’s useful to show that she has a sincerely-held belief on the matter. It’s really about one of the other parts of the 1stA. Also, I think one has to bear in mind that it tends to end up with religious people on the other end because they get targeted on account of their known views. However, there are probably lots of other cases out there which don’t involve religion, but for whatever reason they haven’t been selected as the test case by the Alliance Defending Freedom. I believe that on this issue there were other cases (though I’d have to check), and the ADF would have gone through a selection process before pouring their resources into a case.
Ridiculous. Would ‘they’ accept the opposite? Find a trans baker, order a cake that says “Trans women are not women, and their rights do not supersede everyone else’s”
I see nothing wrong about a cake with Eric and Ernie on the top.
It’s not difficult to legally force a business owner to provide a service such as a hotel room without discriminating against anyone.
But how can you force someone to be creative? Suppose you were in the business of creating advertising and clever slogans, etc, and you were well and truly “anti trans”, and suppose you were FORCED to create slogans for a trans organisation, what kind of slogans would you creatively come up with? The mind boggles! Maybe apparently pro-trans slogans with hidden anti-trans messages:
“Trans women are women every bit as much as normal women.”
“Women are statistically more like to be raped by men than by trans women.”
“A trans woman with a penis isn’t a man, even if she has fathered five children.”
more likely, not ‘more like’.
Set the price of the order so high that the “customer” declines.
There was an episode of friends where someone asked a character – Phoebe – to do something and she said
Phoebe : “Oh, I wish I could, but I don’t want to.”
What has happened to choice? Why make, or attempt to make, someone to do something if they don’t want to?
As a web designer or a cake designer have talents that are above the mainstream I can’t see why they can’t subtly introduce their own values into any project they take on. Maybe a bit of satire in the design?
Sure not an idea situation but the back code of the website can reflect the builders views without the commissioner knowing it’s there (otherwise they would build the site themselves), as an example metadata in a digital photograph contains lots of information that the average user never sees.
It wouldn’t be too hard for the cake icer to ice in words that reflect their views ‘hidden in plain sight’ either.
Does he also have to make a cake in support of lowering the age of consent? Not so different from what happened in Northern Ireland with Ashers bakery, where so-called same-sex marriage was illegal at the time.