The Briefing

Documentation and Additional Reading

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Part

New York Times

Their Cake Was Not a First Amendment Issue, by New York Times Editors

New York Times

The Masterpiece Cakeshop Case Is Not About Religious Freedom, by Jennifer Finney Boylan

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Tuesday, December 5, 2017

Tuesday, Dec. 5, 2017

Tags: Animals, Audio, Jack Phillips, Masterpiece Cakeshop, Morality, Religious Liberty, Supreme Court

Transcript

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Stakes are high as Supreme Court hears oral arguments in Masterpiece Cakeshop case

In terms of religious liberty, there has been no recent case before the Supreme Court nearly so important as the case that arised today. The nation's highest court today will hear oral arguments in the case formally known as Masterpiece Cake Shop versus Colorado Civil Rights Commission, but we're not just here talking about wedding cakes, and we're not just talking about the state of Colorado. We are talking about a case that presents some of the most basic questions about religious liberty in that inevitable collision with the sexual revolution, and not only religious liberty. The freedom of speech as well.

The timeline in the case is really important. Back in 2012, a man by the name of Jack Phillips, who owns the company known as Masterpiece Cake Shop, denied the request that was made by two men to create a cake in order to celebrate their marriage. Now, just consider the fact that in 2012, same-sex marriage was not legal in Colorado. That wouldn't happen until 2014, when that state legalized same-sex marriage. Before in 2015, the Supreme Court of the United States, in the Obergefeld decision legalized same-sex marriage nationwide. But this wasn't in 2015. It wasn't in 2014. It was back in 2012.

The two men who were at the center of this story on one side, could not have gotten married in the state of Colorado. They had to go to Massachusetts to get married, but they wanted to hold a reception back in Colorado. And so they asked Jack Phillips and his company to create a wedding cake for a wedding reception. Jack Phillips refused, saying that he was glad to sell products to persons regardless of their sexual orientation or gender, but that he could not use his artistic expression in order to create what would be a romantic endorsement of same-sex marriage in the form of a wedding cake.

The two men then decided to take legal action against Jack Phillips and Masterpiece Cake Shop, arguing that his actions in refusing to make this particular cake, had violated Colorado's anti-discrimination ordinance. They were eventually successful in bringing legal action against Jack Phillips, and that legal action was eventually upheld by the Colorado courts. Those courts found that indeed Jack Phillips had violated Colorado's anti-discrimination ordinance and they ordered him to cease and desist. They ordered him to give reports every two years documented the fact that he was now acting in accordance with that anti-discrimination ordinance and they also threatened him with significant legal fines that could well have put him out of business.

Jack Phillips then appealed to the Colorado Supreme Court, that did not accept his appeal, but it's very telling the Supreme Court of the United States did announce months ago that it was accepting his appeal, and the oral arguments are going to be heard today.

Part

Media coverage of Masterpiece case insists what case is not about

So, as you are looking at the national press, dealing with this question, what you see, more than anything else, is that the two great sides in terms of the cultural conflict in this country, are not even agreed as to what the case is about. Jack Phillips and his attorneys from the Alliance Defending Freedom, are arguing that what's at stake is both religious liberty and free expression, free speech. They are arguing that in requiring Jack Phillips to make a cake, using his artistic expression and thus requiring him to articulate, by means of that expression, a support for same-sex marriage that violates his convictions, well they are arguing that that is a violation of religious liberty, but it is also a violation of protections against forced speech.

The bottom line is that Phillips and his attorneys will be arguing today that his free speech rights have been directly infringed, and beyond that, religious liberty as well. On the other hand, those who are arguing the case for the Colorado Civil Rights Commission, are going to be saying this is a clear and simple case of unlawful discrimination, not so much against same-sex marriage, which they admit didn't exist in 2012, but against persons who identify as having a same-sex sexual orientation.

Now, Jack Phillips, in response has said that he is quite willing and has demonstrated that willingness to sell his products and to offer services to persons regardless of sexual orientation, so long as he is not obligated and required to join in the expression, in order to violate his convictions concerning marriage as the union of a man and a woman.

In another really relevant fact related to his case, the same Colorado civil rights commission had heard cases in which other bakeries were faced with customers who demanded that they would create cakes with messaging that would be against, morally opposed to homosexuality, and the same civil rights commission found in favor of those bakeries, but they found that Jack Phillips was not discriminated against in terms of his messaging, but rather had discriminated against customers on the basis of their sexual orientation.

Now before we get to the oral arguments, here's what we're looking at. We are looking at the fact that here, Jack Phillips is standing in for Christians, not only in Colorado, but everywhere, in virtually every expressive profession, but not only that. What we are looking at here is the fact that even columnist George Will in the Washington Post pointed out, this is basically the sexual revolutionaries bullying a baker. This baker and that profession will not be the last.

But we are also looking at a huge worldview clash over what the case is about, and here, a look at some of the recent media attention is extremely important. The editorial board of the New York Times would insist that it is on the front lines of defending First Amendment freedoms, but on Saturday that same editorial board ran an editorial with the headline, "The Cake Was Not a First Amendment Issue." So the editorial board of the New York Times has to insist in this case, in order to support the sexual revolution and sexual liberty that there is no first amendment issue here at all. When it comes to this baker in Colorado, no accident here. Keep moving. Nothing to see.

Steve Sanders, identified as an associate professor at the Maurer School of Law at Indiana University had an op-ed piece in Sunday's edition of the New York Times, the headline, "Even the Bernini of Buttercream has to Serve Gay Couples." But what this article is really seeking to argue, is that Jack Phillips is not an artist. Why? Because a cake baker can't really be involved in artistry. What we see here is further evidence the condescension of the secular left when it comes even to art. What they say is art is art, and here we'll have to simply say that we would have to defer discussion as to the bizarre things that the secular left dares to call art.

But when it comes to making a cake, well the argument here, it isn't art. It's simply a cake. George Will tried to make a similar argument in Sunday's edition of the Washington Post, saying that the case, more than anything else, is about something that should be understood as food, but we'll simply note here that no one basically talks about cake at a wedding as food, but rather as expression.

Some months ago, in a round table discussion with legal authorities about this cake, I simply went to various websites of very expensive wedding cake purveyors and demonstrated that it is, very much, a matter of artistic expression, down the fact that some bakers, who are willing to charge up to 10 to $15,000 for an original cake, will promise the client that it will be unique, such that no other cake will look like this cake.

Well, you may not like it because it has buttercream, but any honest person would have to admit that if you're making those kinds of promises, it is expression. The argument basically comes down to the fact that a wedding cake is not expression, but of course it is the very construction of a wedding cake that makes it recognizably a wedding cake is a celebration of romantic love.

In another article in the New York Times, John Corvino, one of the major legal theorists behind same-sex marriage goes so far as to argue that wedding cakes are actually, in his words, "not a thing." He says gay wedding cakes are not a thing. Here we simply have to respond, oddly enough, yes they are a thing. If they weren't a thing, we wouldn't be talking about this case. Corvino goes on to say, "although Phillips' cakes are undeniably quite artistic, he did not reject a particular design option such as a topper with two grooms in which case his First Amendment argument would be more compelling. Instead," says Corvino, "He flatly told the two men that he would not sell them a wedding cake."

But here we have to recognize that what was demanded of this baker was a wedding cake for a same-sex marriage. In other words, we are talking about a cake that was a thing, a real thing. Similarly, in the very same newspaper, Jennifer Finney Boylan wrote an article. The headline was this, "The Masterpiece Cake Shop Case is not About Religious Freedom." She argues, again, it's simply a matter of discrimination. That's the only legal issue at stake here.

So let's just keep this straight. The New York Times editorial board says it's not about the First Amendment. One of their op-ed writers says it's not about art. Another op-ed writer for the same newspaper says it's not about religious liberty. Well, you're beginning to catch the pattern, that those who are so insistent to defend the sexual revolution at all costs, are going to say it's not about anything else. It can't be. Those other things, well, they're not even things.

Part

A new right not found in the text of the Constitution and two rights that are

Those oral arguments to be held today will be very interesting in and of themselves, as is always the case. The main arguments from both sides have already been presented to the court in the form of written legal briefs, but the oral arguments are often more revealing about, not so much the cases to be made, but how the justices are thinking. Thus a great deal of attention will be directed to every single justice, all nine of them, but it is also simply honest to say that the main attention is going to be directed to a single justice, Justice Anthony Kennedy.

Over the course of the last 30 years, Anthony Kennedy, appointed to the court by a Republican president, has appeared to make gay rights, and in particular, now same-sex marriage, the keystone of his legal career and his legacy on the nation's highest court. But at the same time, he has also been the most consistent defender of free speech at the US Supreme Court. So, Adam Liptack, writing for the New York Times, says that Kennedy, "simultaneously is the court's most prominent defender of gay rights and its most ardent supporter of free speech."

We need to remind ourselves that cases like this do not automatically arrive at the Supreme Court. The Supreme Court, in terms of a requisite number of justices, has to decide to take such a case, so it tells us something that the Supreme Court decided to take this case. Why did those justices decide to take the case? What do they think that this case is about? That's what could be at least partly revealed in the oral arguments to be held today. By tomorrow, we may know a great deal more.

On the other hand, what happens in oral arguments can be misleading in terms of how a case is eventually decided, but the track record in terms of interpreting those oral arguments as over against the final decision, has actually gotten considerably better over the last several years because the justices, perhaps now more than ever before, know that they are being watched and they are being heard in terms of their comments and their questions.

We've talked repeatedly about that inevitable collision between religious liberty and sexual liberty and here we have to note that when the Supreme Court of the United States meets, it is supposed to take, as its primary authority, the written text of the US constitution. That written text of the US constitution includes the First Amendment without which the constitution would never have been ratified. And that First Amendment, has in black and white text, an absolute affirmation of the recognition of the freedom of religion and the freedom of speech that is essential to the American experiment.

But then we have, ever since the 1960s, this court inventing, supposedly finding, not in the words but in the meaning of the constitution, an entirely new right, a right that is correctly called sexual liberty. And they have used that, at least in terms of a majority of the justices, to ram through a series of judicial, moral revolutions, in the United States, ranging all the way from questions of contraception to abortion and now, of course, homosexuality and same-sex marriage.

We're about to find out in this extremely important case, a case in which so much is at stake, whether or not the Supreme Court of the United States is going to respect two rights that are very clearly enshrined in the US constitution, in favor of a newly invented right, that just as surely, is not.

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Debate among biologists about animals and morality goes right down to mollusks

Next, we shift to a very different article. The Ideas Section appears every Sunday in the Boston Globe. It's often very interesting. It's a part of that paper's review section, but it's unique in that it tries to deal with big ideas and big questions. This past Sunday it did. Here's a headline for you, "It's Only Human to See Our Own Sins in Animals." This is a report about current scientific debate discussion and research.

The article begins with these words, "Klepto, derived from a Greek word for a thief, has been part of English words for some time. We've talked about kleptocracies and kleptomaniacs since the 1800s, but thievery isn't limited to the human race, at least in the wild world of science. A recent study of mollusks resulted in the coining of a new term, klepto-predation. That's when a predator waits until the belly of its prey is full before striking."

Mark Peters summarizes when he writes, "It's hard not to anthropomorphize when discussing animal behavior from stealing to slavery. The natural world is complicated and metaphors are useful in communicating the simple ideas behind complex behaviors." But then he says, "It's problematic too because it forces biologists to affix moral judgments on other organisms."

In terms of Christian worldview analysis, this article gets really interesting. For one thing, we have the acknowledgement of the human temptation to anthropomorphize. That is to try to ascribe to animals moral and personality, linguistic and that are only actually possessed by human beings. Now remember the Christian worldview explains why the uniqueness of human beings, made in the image of God, given the gift of relatability, given the gift of language, made in the image of God, alone able to know God and furthermore we have the moral reality of what it means to be made in the image of God, which is we simply have to note, as this article also seems to recognize, not extended to the animal world.

But now we are told the biologists find it difficult to describe animal behavior without using those moral metaphors, anthropomorphizing and even speaking of immoral activity, rather, natural activity, we simply have to note, amongst animals, in this case mollusks. But we also have to note that this is a debate that goes back a very long time in terms of human interaction with animals and our observation of the animal kingdom.

For one thing, we have terms like those used by biologists in this article, klepto-parasitism and klepto-predation. We're talking about the fact that some animals actually want their prey to prey on others and to be full before they attack and eat them themselves because they can maximize the caloric gain. Now if we look at that in a human perspective, we would say that's cold, that's calculating, that's mean. But, so-called klepto-predation can take other forms as well. We see this just in terms of wildlife films, where you have one smaller predator kill prey, only to have a larger predator such as a lion come and take the prey away. And of course sometimes, kill both the prey and the smaller predator.

And so, what you're looking at there is lions, we simply have to note from a Christian worldview, after the fall, simply acting as lions. Nature, as has been put, red in tooth and in claw. But what we also recognize from a Christian worldview, is that when a lion does that, the lion is simply being a lion. The lion is demonstrating the viciousness and the cruelty that is a part of creation after the effect of sin and the fall, but it would be wrongly recognized to look at a lion, following that pattern of behavior, and say bad lion.

But here in terms of worldview confusion, we also need to note that the entire point of this article is that biologists seem to be increasingly aware of the fact that it would be wrong, it would be a category error to anthropomorphize in this way and to ascribe moral responsibility to animals who don't have any sense of that moral responsibility. What the mollusks are doing here might look very cold and calculating, but it's not morally wrong. It is simply a mollusk being a mollusk.

But it's very important at this point to underline the fact that at the same time, others in the name of science are trying to blur the distinction between human beings and nonhuman animals. And we understand that that's not only a worldview problem. It's a massive threat to human dignity as well. So in this article, you see at least some scientists and observers of science, trying to clarify what other scientists simultaneously are trying to confuse. On the one hand, you have some scientists saying that chimps should have lawyers, while on the other side you have others arguing that it's wrong to blame animals simply for being animals.

Meanwhile in an article like this, you not only get a display of the absolutely necessity of worldview thinking. You also get some new vocabulary. Klepto-predation and klepto-parasitism. Extra credit today if you can work those into conversation.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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