Turning the Supreme Court into a Safe Space

On December 5, the Supreme Court will hear oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commissioner, the controversial case about Jack Phillips, a Christian baker seeking an exemption from his state's public accommodations law based on his First Amendment right against compelled speech.  This is a case that will shape our personal expressive liberties in profound ways for years to come.  It bears not only on religious freedom but on the potential for people to channel their creative energies into meaningful livelihoods rather than having to default to alienating jobs or embark on paths of ruthless careerism.

As the parties mobilize in anticipation, liberals befog the stakes with anti-right clichés.

Here are the basics.  Petitioner Jack Phillips maintains that his commissioned wedding cakes materially embody his ideas and beliefs about marriage.  Indeed, the wish to live and work in full harmony with his religious tenets explains his life decision some twenty-odd years ago to put his artistic skills to use as a baker and open his own business.  As the Justice Department as amicus put it (and kudos that the department weighed in on this one), "Phillips is a Christian who seeks to incorporate his religious principles into all facets of his business."  When respondents Craig and Mullins initially expressed an interest in ordering a cake from him for their same-sex ceremony, Phillips therefore declined.  He explained that were he to fulfill this specific order (though not any others the couple might choose from his varied inventory), this would be tantamount to his sending a message of approval of the rite in which the cake would be featured.  He did not feel that approval, nor did he wish other people to mistakenly perceive that he did.     

A social media campaign, the terms of whose vilification of Phillips are easily imagined, ensued.  Another local cake-maker stepped forward and offered to supply the cake gratis.  The cake the couple picked bore a rainbow design – that is, it made the symbolic statement Phillips preferred not to link himself or his business to, pursuant to his (free speech-related) freedom of expressive association.  Meanwhile, Craig and Mullins lodged a complaint against Phillips with the state administrative agency empowered to enforce nondiscrimination laws, the one in question requiring vendors not to discriminate in the provision of goods and services on the basis of protected characteristics, including sexual orientation.  Phillips lost and was severely and degradingly penalized.  Left with no choice, he took the case up the chain.  Finally, he obtained the grant of certiorari from the U.S. Supreme Court that will be argued next month.  

There, Phillips will press his claim that by coercing him to contribute his artistry to the communicative aspect of Craig's and Mullins's event, the state is compelling him to convey an unwanted message.  On the other side, respondents will urge that the public accommodations law at issue does not intrude on creative activity.  The process of designing what they claim are standard-issue baked goods cannot in their view be distinguished from any normal sale of goods and services, an area long regulated by government.

But protected speech as understood by the Supreme Court has a penumbra around it that encompasses degrees of enacted, rather than exclusively spoken or written, expression.  There's the rub.  Waving a flag is a substitute for verbalizing support for the nation that flag stands for.  It is considered "expressive conduct."  Does the cake-creating process fall into this constitutionally privileged category? 

The lower court hedged on this.  If the cake emitted a "particularized message," it said, a wedding cake could be deemed expressive.  But Craig and Mullins never reached the point of divulging the design they wanted.  The couple might have specified something "nondescript."  Phillips therefore couldn't have known that he would be, as the Department of Justice argues, "giving effect to their message by crafting a unique product with his two hands."  What's more, even if a wedding cake could under certain circumstances be considered to be "imbued with expressive elements," any message it disseminated would be the customer's, not the baker's.

My focus here is not on the Supreme Court precedents that dispute this, but rather on the disconnect between respondents' position and our hyper-deconstructed, market-driven culture.  Petitioner Phillips focuses rightly on the cake's prominent ceremonial significance.  But there's also the fact that everything, we are told by the social justice warriors – from hair braids to a pair of shoes worn by the first lady – carries meaning.  These meanings the New York Times and its ilk regularly "decode" for us, the cultural illiterati.  So, to select a few examples, elite critics call those who splash paint on buildings not vandals, but graffiti "writers."  They decipher the "vernacular" of cityscapes.  They hail rights for nonhumans (in effect, endowing animals with voices).  And they hype commodities that have the power to "construct" – i.e., make readable – individual identity.  

Language, language everywhere.  Only Phillips's edible monuments to marriage are mute.   This equates to their being excluded from the Sunday-magazine logosphere, where left-leaning authorities with superior savvy expatiate on everything from the crock pot you're using (or should be using) to what we can't possibly understand about the LGBTQ experience. 

Yet if Phillips's commissioned wedding cakes are expressive nullities, they are so only up the point that they're not.  That comes when the commentariat and the interests they serve cease to get their way.  At that point, the thought police mass, clamorously supplying the missing subtext.  The cake, or more specifically, Phillips's refusal to contribute his artistic process to a ceremony he can't condone, becomes not only symbolic.  It becomes the Ur-symbol, the archetype of everything hateful and destructive to enlightened society.  This from the SCOTUSblog:  

This cake is not really about a cake.  It is about equal citizenship of gay people, and whether we may engage in the kinds of ordinary transactions others take for granted in the commercial marketplace and beyond.  Will moral objections to who we are and whom we love be accorded constitutional supremacy over ordinary human decency, over the Golden Rule, over the long-standing American rule of businesses dealing with all comers?  Will these objections justify closing the door on LGBT people, and, once again, marking them – including the youth who had begun to hope they could live a full life – as outcasts and inviting further discrimination?

Defiling the Golden Rule...that's a lot of symbolic freight to carry for a cake that a minute ago was a prosaic accessory to an "ordinary" transaction.

What are the expressive rights of commercial artists like Phillips, whom you'll never see dressed in casual chic staging his social grievances in a layout in Vanity Fair?  Are they no more than a hired gun for progressives who declaim their sensitivities louder than the Christian photographer forced to take pictures at a same-sex ceremony or the Jewish sketch artist condemned by the state to get up close and personal with the attendees at a neo-Nazi convention?  These and other questions the Supreme Court will be called upon to decide.

It shouldn't be easy.  But it isn't helped when writers like Dorothy Samuels reduce the legal and human nuances involved to a "dishonest, if clever, distraction" concocted by the Justice Department.

By the way, if you're marveling at the hubris of a few government lawyers trying to slip a fast one past nine justices, marvel no more.  Instead, do what the callow American Prospect contributor appears not to have done.  Read footnote 3.