'Make Them Bake Cake': The Bizarre Arguments against Bakers' Free Speech Rights

Last week's New York Times piece by Jennifer Finney Boylan, "The Masterpiece Cakeshop Case Is Not About Religious Freedom," floored me with the number of distortions it crowded into a few paragraphs.  I can only conclude that the left's discourse and values have become so wayward and impoverished that they would rather criminalize creativity than take on the serious issues the Supreme Court will be hearing on December 5.

Boylan begins with a dark narrative about the pharmacy Boylan frequents, "run by a conservative Republican."  (Is there any other kind?)  Will he refuse to fill the demanded prescription, Boylan quails, "given my condition"?  What condition is that? I wondered, as clearly each reader was meant to – compulsive self-dramatizing syndrome?

Thus begins Boylan's parade of horribles.  If Phillips wins in his appeal from lower court decisions, sick babies will die, HIV patients will be turned away from treatment clinics, pre-Civil Rights abominations will become the order of the day.  Except none of these scenarios is backed up with citations from the court papers.  There's a good reason for that.  They're not in there.  But after all, what do facts matter when it comes to the left's self-suffering legerdemain?

Does Colorado's state public accommodations law as applied to Jack Phillips's refusal to accept a commission for a cake for two men trying to marry each other regulate speech or conduct?  Under First Amendment law, the latter is permitted.  The former, with minimal exceptions, is not.

That is the threshold question. 

Phillips argues he was being forced to convey an unwanted message by providing a custom-made cake for Craig's and Mullins's ceremony.  One of the cases Phillips and the Justice Department as amicus rely on is the Supreme Court's 1994 ruling in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.  It held that a private sponsor, a veterans' group, was not required to admit an LGBGT group to its St. Patrick's Day parade because that would require the group to alter its message, which did not embrace approval of gay pride.  The same doomsday predictions we hear in advance of Tuesday's oral argument were adumbrated there, too.  None of them came true.  But why learn from history? 

What about the actual case?  Disagreeing with Phillips's characterization, Craig and Mullins and the Colorado Civil Rights Commission (respondents) claim that CADA permissibly regulates conduct, not speech.  The targeted conduct is the provision of a good or service.  According to them, the nature of the good or service is irrelevant.  Phillips's action is discriminatory, plain and simple.  His claim that CADA is unconstitutional as applied to him is just a pretext for his religion-inspired reactionary hatred.

Boylan echoes this reductionism, and then some.  But while Craig and Mullins are bound to the papers and what they actually say, Boylan is not.  Boylan singlehandedly reinterprets pages of argument and counter-argument analyzing CADA, discussing precedents, and building on agreed upon facts with magical revision: 

There are two important things to know about the religious freedom/wedding cake case.  One is that it's not about religious freedom – it's about religious exemption.  The other is that it's about a whole lot more than wedding cakes.  

While CADA does in fact grant religious exemptions, that is not what Phillips is seeking.  As David French at National Review notes, it is the other way around.  Craig and Mullins are demanding an across-the-board application of Colorado's public accommodations law that amounts to a state exemption from the First Amendment. 

But Boylan is right about Masterpiece being about a whole lot more than wedding cakes (as though the Supreme Court would grant certiorari to a case that didn't have far-ranging implications).  The undisputed facts show that Phillips serves customers attracted to members of their own sex all the time.  He limits his rejection of their requests to cakes for ceremonies meant to be weddings.  In other words, Phillips maintains, and his actions corroborate, that he is selectively choosing not whom to serve, but what product to offer.  He bases this refusal on his religious beliefs in light of the nature of the specific product he produces – the demands it takes on his time; the drawdown it makes on his creative energies; and, perhaps most important, the dissonance that would result if he were forced to deploy his talents robotically in the name of dogma.  

The real question, therefore, is not whether Boylan can get estrogen at his pharmacy because he thinks he is a woman.  (We finally get let in on the secret of his condition!)  It is, in my view, not even about religion.  It is about preserving some anarchic sweet spot in our increasingly alienated, doctrinaire, one-size-fits-all society – a space devoted to whimsy, invention, and psychic independence.  That is what creativity requires.  Just ask the artists whom Stalin banished to Siberia and certain death for no worse crime than painting more like the American abstract expressionist Willem de Kooning than Stalin's stable of Soviet Realist lackeys.  When the government starts requiring creatives to perform in the service of the one true ideology, vision withers.

Not that any lockstep leftists nowadays would notice.  This is why the soulless Boylan can glibly misrepresent the question of whether Jack Phillips's wedding cakes are "art."  The entirety of the argument in Boylan's seeming make-it-up-as-you-go discussion comes down to sleight-of-hand: Phillips can't win on the issue of faith, so he defaults to calling his "nice-looking cakes" art.  That's simply incorrect. 

The possible First Amendment implications of CADA are not at issue.  They have already been admitted by respondents, including the Colorado Civil Rights Commission.  Indeed, the commission declined to enforce CADA against bakers who refused to serve religious customers asking for a special-order wedding cake with words from Leviticus on it on just these grounds.  The unresolved question here is not whether the First Amendment may apply.  It is whether it does where there is no express written message – only an implied one. 

Technically, if the cakes are deemed "art" rather than "implied speech," according to ample case law, their expressiveness is absolutely protected.  Art, unlike implied speech, doesn't have to convey a "succinct and articulable" message.  It is "pure expression" and can simply be.  Perhaps it is no coincidence that the Hurley court used the express inarticulateness of Jackson Pollack's abstract expressionist paintings as an example of this principle.  In any case, the point is, even if the cakes are not "art," the constitutional challenge doesn't go away.    

Even granting, moreover, that there is room to disagree over the artistic status of Phillips's "masterpieces," Boylan's caution that "that argument demands that the court get into the business of defining art itself" is mind-boggling.  The courts are asked to decide on the nature of expression and its protectability literally all the time.  Can a tattoo parlor be singled out in a zoning law, or does it engage in protected speech?  Is a cropped copy of a Walker Evans photograph thievery or fair use (sanctioned by the First Amendment exception to copyright)?  How do you define obscenity?  Boylan's idea that the Supreme Court shouldn't be asked to distinguish between Phillips's elaborately designed ritual object and, as Boylan puts it, a "well-manicured lawn" is so out of whack that even the respondents don't venture it.

At the end of the article, Boylan acknowledges that his old-timey pharmacist never treated him with anything but "kindness and respect."  It is almost as if he is disappointed that reality hasn't lived up to his counter-factual histrionics.  Although this type of commentary is what we have come to expect from the Times, it is worth adding that it is cheap – dirt cheap.  Anybody at all who sees fit to suspend the facts can make a "slippery slope" argument.  Fortunately, we still live in a country where the supreme court of the land attends to more than horror-baiting.

Last week's New York Times piece by Jennifer Finney Boylan, "The Masterpiece Cakeshop Case Is Not About Religious Freedom," floored me with the number of distortions it crowded into a few paragraphs.  I can only conclude that the left's discourse and values have become so wayward and impoverished that they would rather criminalize creativity than take on the serious issues the Supreme Court will be hearing on December 5.

Boylan begins with a dark narrative about the pharmacy Boylan frequents, "run by a conservative Republican."  (Is there any other kind?)  Will he refuse to fill the demanded prescription, Boylan quails, "given my condition"?  What condition is that? I wondered, as clearly each reader was meant to – compulsive self-dramatizing syndrome?

Thus begins Boylan's parade of horribles.  If Phillips wins in his appeal from lower court decisions, sick babies will die, HIV patients will be turned away from treatment clinics, pre-Civil Rights abominations will become the order of the day.  Except none of these scenarios is backed up with citations from the court papers.  There's a good reason for that.  They're not in there.  But after all, what do facts matter when it comes to the left's self-suffering legerdemain?

Does Colorado's state public accommodations law as applied to Jack Phillips's refusal to accept a commission for a cake for two men trying to marry each other regulate speech or conduct?  Under First Amendment law, the latter is permitted.  The former, with minimal exceptions, is not.

That is the threshold question. 

Phillips argues he was being forced to convey an unwanted message by providing a custom-made cake for Craig's and Mullins's ceremony.  One of the cases Phillips and the Justice Department as amicus rely on is the Supreme Court's 1994 ruling in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.  It held that a private sponsor, a veterans' group, was not required to admit an LGBGT group to its St. Patrick's Day parade because that would require the group to alter its message, which did not embrace approval of gay pride.  The same doomsday predictions we hear in advance of Tuesday's oral argument were adumbrated there, too.  None of them came true.  But why learn from history? 

What about the actual case?  Disagreeing with Phillips's characterization, Craig and Mullins and the Colorado Civil Rights Commission (respondents) claim that CADA permissibly regulates conduct, not speech.  The targeted conduct is the provision of a good or service.  According to them, the nature of the good or service is irrelevant.  Phillips's action is discriminatory, plain and simple.  His claim that CADA is unconstitutional as applied to him is just a pretext for his religion-inspired reactionary hatred.

Boylan echoes this reductionism, and then some.  But while Craig and Mullins are bound to the papers and what they actually say, Boylan is not.  Boylan singlehandedly reinterprets pages of argument and counter-argument analyzing CADA, discussing precedents, and building on agreed upon facts with magical revision: 

There are two important things to know about the religious freedom/wedding cake case.  One is that it's not about religious freedom – it's about religious exemption.  The other is that it's about a whole lot more than wedding cakes.  

While CADA does in fact grant religious exemptions, that is not what Phillips is seeking.  As David French at National Review notes, it is the other way around.  Craig and Mullins are demanding an across-the-board application of Colorado's public accommodations law that amounts to a state exemption from the First Amendment. 

But Boylan is right about Masterpiece being about a whole lot more than wedding cakes (as though the Supreme Court would grant certiorari to a case that didn't have far-ranging implications).  The undisputed facts show that Phillips serves customers attracted to members of their own sex all the time.  He limits his rejection of their requests to cakes for ceremonies meant to be weddings.  In other words, Phillips maintains, and his actions corroborate, that he is selectively choosing not whom to serve, but what product to offer.  He bases this refusal on his religious beliefs in light of the nature of the specific product he produces – the demands it takes on his time; the drawdown it makes on his creative energies; and, perhaps most important, the dissonance that would result if he were forced to deploy his talents robotically in the name of dogma.  

The real question, therefore, is not whether Boylan can get estrogen at his pharmacy because he thinks he is a woman.  (We finally get let in on the secret of his condition!)  It is, in my view, not even about religion.  It is about preserving some anarchic sweet spot in our increasingly alienated, doctrinaire, one-size-fits-all society – a space devoted to whimsy, invention, and psychic independence.  That is what creativity requires.  Just ask the artists whom Stalin banished to Siberia and certain death for no worse crime than painting more like the American abstract expressionist Willem de Kooning than Stalin's stable of Soviet Realist lackeys.  When the government starts requiring creatives to perform in the service of the one true ideology, vision withers.

Not that any lockstep leftists nowadays would notice.  This is why the soulless Boylan can glibly misrepresent the question of whether Jack Phillips's wedding cakes are "art."  The entirety of the argument in Boylan's seeming make-it-up-as-you-go discussion comes down to sleight-of-hand: Phillips can't win on the issue of faith, so he defaults to calling his "nice-looking cakes" art.  That's simply incorrect. 

The possible First Amendment implications of CADA are not at issue.  They have already been admitted by respondents, including the Colorado Civil Rights Commission.  Indeed, the commission declined to enforce CADA against bakers who refused to serve religious customers asking for a special-order wedding cake with words from Leviticus on it on just these grounds.  The unresolved question here is not whether the First Amendment may apply.  It is whether it does where there is no express written message – only an implied one. 

Technically, if the cakes are deemed "art" rather than "implied speech," according to ample case law, their expressiveness is absolutely protected.  Art, unlike implied speech, doesn't have to convey a "succinct and articulable" message.  It is "pure expression" and can simply be.  Perhaps it is no coincidence that the Hurley court used the express inarticulateness of Jackson Pollack's abstract expressionist paintings as an example of this principle.  In any case, the point is, even if the cakes are not "art," the constitutional challenge doesn't go away.    

Even granting, moreover, that there is room to disagree over the artistic status of Phillips's "masterpieces," Boylan's caution that "that argument demands that the court get into the business of defining art itself" is mind-boggling.  The courts are asked to decide on the nature of expression and its protectability literally all the time.  Can a tattoo parlor be singled out in a zoning law, or does it engage in protected speech?  Is a cropped copy of a Walker Evans photograph thievery or fair use (sanctioned by the First Amendment exception to copyright)?  How do you define obscenity?  Boylan's idea that the Supreme Court shouldn't be asked to distinguish between Phillips's elaborately designed ritual object and, as Boylan puts it, a "well-manicured lawn" is so out of whack that even the respondents don't venture it.

At the end of the article, Boylan acknowledges that his old-timey pharmacist never treated him with anything but "kindness and respect."  It is almost as if he is disappointed that reality hasn't lived up to his counter-factual histrionics.  Although this type of commentary is what we have come to expect from the Times, it is worth adding that it is cheap – dirt cheap.  Anybody at all who sees fit to suspend the facts can make a "slippery slope" argument.  Fortunately, we still live in a country where the supreme court of the land attends to more than horror-baiting.

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