Tuesday, December 5, 2017

The Great Supreme Court Wedding Cake Face Off - Should Be A No Brainer

It's safe to say that businesses across the wedding industry will be closely watching what happens today when the U.S. Supreme Court convenes to hear the case of a religious Colorado baker who refused to do work for a gay couple who were getting married.  At issue is whether Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, had the legal right to turn away fiancĂ©s Charlie Craig and David Mullins when they asked him to bake a wedding cake in 2012.

Phillips, a strict religionist,  contends his cakes were art and that doing a "gay cake"  would defile that art and so  violate his Christian values .  Also his right to free expression; Craig and Mullins counter that it’s discriminatory to refuse them a service offered to other customers for a business in the public domain..

Supporters of Phillips argue that if he loses his legal fight then like-minded entrepreneurs with a religious objection to same-sex marriage effectively would be "barred" from doing wedding work. (In fact it would be their choice not to do such work, i.e. opt out.)  The claim is that a loss would also “provide a road map for litigation against Christian photographers who are bound by religious conviction not to offer their artistic talents to photograph a same-sex wedding ceremony or celebration,” wrote the International Christian Photographers in a brief filed to the high court.

Of course, all of this is codswallop which mixes apples and oranges within a civil,  legal framework. At issue then, is whether the cake maker - and the assorted Xtian photographers for that matter- have entered into a business or not. If not, if they simply follow their art or self-expression - with NO public sales or commerce- then they are not obliged to do anyone's bidding. They are not in the commercial marketplace but operating in their own private domain.

If, however, they are businesses and operating in the public, commercial sphere, then no such rights apply. That's why this ought to be a no brainer for the Supreme Court. Consider the consequences if Phillips' argument and associated  memes were extended willy-nilly so that anyone could apply it. Pharmacies could refuse serving people they regarded as "violating God's  laws"   - say denying birth control pills to young, single women ..

Owners of football teams could well decide that they want no Jews, blacks, or gays entering their stadiums and they might put that into place. Private Catholic hospitals -operating as businesses - might decide that they want no Muslims, Jews or gays on their premises either. Restaurants would feel free to bar anyone they think is marginal, including those who look like 'thugs' - or  whoever doesn't fit flitty criteria like hair length, or quality of dress.

In other words, you'd invite a society bordering on chaos.  Thus,  attorneys aligned ideologically with Craig and Mullins argue that a ruling in favor of Masterpiece Cakeshop would open the door for widespread discrimination — starting with weddings and spiraling outward- as I described above. In the words of one of the lawyers for the Denver Metro Chamber of Commerce:

"It is not hard to imagine the claims that will follow this case: A jeweler may argue that his religion forbids him from selling wedding rings to an interfaith couple; a shop owner may refuse service to women customers to avoid contact prohibited by his religion,” 

What would there be to stop it? Well, nothing, if each little special "private business"  decides to whom it will sell and who will be rejected as miscreants. Here's the bottom line truth: The restaurateur, cake maker, photographer is afforded certain privileges (via a licensing) to trade or provide services (such as food) in the public domain. However, their so called "freedom" (to trade)  is limited. Hence,  that can't include refusal of service unless there are extenuating circumstances, i.e. the customers enter drunk and disorderly. The trader doesn't have the latitude to refuse service on basis of race, skin color, OR the customer perceived as violating the trader's religious predilections..

For his part, Phillips,  in one brief, argues the “market already provides existing means to address this (issue), such as private websites apprising consumers of professionals in a geographical area who will celebrate same-sex weddings,”.  But he totally misses the point. That is, the existence of these other special  or private "niche" services have nothing to do with his own setting up a business that is supposed to provide general services to the whole public. You can't say "I don't have to obey common trade practices because other businesses will".  That's not the way business works in this country,

The dueling arguments are what one wedding professional described as the “unfinished business” of an industry that’s had to rapidly adjust to shifting American attitudes toward same-sex marriage — support since 2001 has risen from 35 percent to 62 percent, according to the Pew Research Center — culminating with its 2015 legal blessing by the Supreme Court.

This is why the state Civil Rights Commissiondeclared Phillips’s religious beliefs about marriage to be discriminatory”.   

According to one expert  (and publisher) on the wedding cake business, Kathryn Hamm:

“The vast majority of the industry is on board with working with same-sex couples,” 

One big reason for this is to do with the clientele. Most weddings are for young people, and most young people accept same-sex marriage — an attitude that weddings vendors increasingly have adopted too, Hamm said.

But she added that acceptance is not universal and some same-sex couples still experience discrimination — which is why legal protections are necessary.

How will the Court ruling go? I don't know but it is safe to say if the justices truly adhere to the legal principles and aren't swayed by emotions (or "free speech" red herrings), they will side with Craig and Mullins.  Not because they are gay and gay people "deserve a break".  But because the operation of the law  in the commercial trade sphere cannot be a free for all where everyone does what he wants - selling services to some because they conform to one's notions of  "self expression", rejecting others out of a sense of violating their  religious faith or personal dignity. That is a prescription for economic anarchy.

Selection of people who benefit from your "art" works is only allowable if the cake makers, photographers etc. are merely pursuing hobbies with no entry in the commercial domain, and no profits. Hobbies are private matters and certainly each person can pursue them as modes of self expression, as he or she sees fit. No law obliges a hobbyist to cede his interest, art or craft to others for their benefit. But - if he's out to make money in a pubic trade, that is a no go. 

When the two sides appear today for oral arguments at the Supreme Court, much of the focus will be on Justice Anthony Kennedy — a frequent swing vote on the nine-member court. According to Alan Chen, a professor at the University of Denver’s Sturm College of Law, Kennedy’s longtime support of free speech could come into play.  According to Chen:

"That suggests that he might be open-minded to the baker’s claim that there is some expressive component to baking a wedding cake that distinguishes it from other businesses,”

Expressive component? Give me a break. That would be a dangerous path to take indeed and one sincerely hopes that Justice Kennedy has enough sense to see it.  If we willy nilly allow every business to run according to "expressive components" we can be sure bedlam will be the result- utter and total. This is a slippery slope no justice ought to be going on - especially Justice Kennedy.

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