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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