Supreme Court Says (Again) You Don’t Have to Bake the Cake

Graphic designer, Lorie Smith wanted to expand her Colorado business to include custom designed wedding web sites, but she feared being sued should she decline to design a same-sex wedding site. Like a vast number of us, she does not wish to promote same sex marriage. That’s not actually a sin.

Five years ago, Colorado baker Jack Phillips refused to bake a wedding cake for a same sex marriage and spent years in court for this decision (https://www.cbsnews.com/news/supreme-court-rules-in-favor-of-baker-who-denied-same-sex-couple-a-wedding-cake/). Mr. Phillips didn’t arbitrarily refuse to serve gay couples or individuals in any group. He didn’t condemn anyone or doom anyone’s future (although the Left’s hyperbole immediately goes there). There are countless other bakers in Colorado who will bake the cake–and be happy to have the business. The real complaint is Mr. Phillips simply didn’t affirm or promote LGBTQ values. Still, he was punished by Colorado, although he eventually won the right to refuse service after appealing to the Supreme Court.

This latest case is similar except the plaintiff went to court before expanding her business. The Supreme Court last month granted her the right to run her business as she preferred. The new ruling is a bit more expansive (i.e. it covers more situations) than the last, so perhaps this issue won’t keep arising every five years. The real issue though is that the Left cannot fathom this ruling. They believe it is totally antithetical to our American values; it is hateful, unfair, narrow minded, etc.

The new, mysterious constitutional right to discriminate

The Supreme Court just announced a new, vague category of businesses that have a constitutional right to discriminate against anyone for any reason they like.

This is a not fair characterization of the court decision, yet the Left persists with the same claims it always makes. Nor is this a fair characterization of the plaintiff’s views and reasoning. She, like Phillips before her, is motivated by values not hatred or bigotry. Let’s explore further.

The New Religion

This topic of this post is quite similar to my last in which I defended the Supreme Court decision to end affirmative action in college admissions (racist-policy-struck-down-by-supreme-court). The court is not defending or promoting bigotry in either case but rather aligning with individual citizens and their right to oppose government or institutional imposed demands.

I would even say government (more specifically, the liberals who dominate its ranks) is promoting new fangled values upon its own citizens: the acceptance of LGBTQ behaviors (behaviors, not individuals, mind you) and the equivalence of the LGBTQ cause with the 1960’s civil rights movement. Notice government’s primary opposition to such causes–the promotion/protection of LGBTQ groups at the expense of other groups, affirmative action (affirming one group’s interests over another), abortion “rights” (ignoring the rights of the child)–is not the Ku Klux Klan, Nazis, or the usual bigoted suspects. Instead, religion, a coalition of Christians, Orthodox Jews, Muslims, and others, is the foil. Religion itself does not promote bigotry or hatred, definitely not of today’s protected groups (as is claimed incessantly). Those who hate religion, those who align with the competing state religion say traditional religion is the problem, but they often target their own hatred towards the religious. They are what they condemn.

Colorado has aligned with the new worldview, one still not accepted by a significant portion of Americans, one which frequently conflicts with traditional religious worldviews. The state’s worldview, not religion’s, is the one which shifted in recent years. State promoted and traditional religious values now openly conflict. In my youth, fifty years ago, there was no such conflict.

The new state imposed religion is intended to supplant all others. A corollary is: government wishes to supplant the family (the domestic church); we are encouraged to ask government, not the family, for support (they seek to buy your loyalty) and for values. This government overreach is the source of so many contemporary problems and disagreements.

But why is a new religion needed at all? Simple: convert the voters to your (phony) religion and you have a constituency ready to re-elect you (and eager to condemn your political opponent and its conflicting values). A case could also be made the culture went awry first and government followed it down the rabbit hole (seeking its votes, of course). Either way, government and a woke culture have aligned. Government attempts to proselytize (or intimidate) folks like Jack Phillips and Lorie Smith to preserve its position. Americans are becoming less religious, so their intimidation is tolerated and their votes more often ignored. Government has the biggest gun by far among all these parties, making it effective at achieving all these goals.

No one can serve two masters. Either you will hate the one and love the other, or you will be devoted to the one and despise the other. You cannot serve both God and money. Matthew 6:24

Today’s government is a jealous master. Foremost among its many demands is loyalty; don’t stray from the worldview on any one topic or the whole house of cards may fall. Adherents who do are castigated and accused of aligning with the enemy, those religious bigots. A Left-leaning government today embodies the worst of the religious practices we have seen throughout history. It is an over-zealous behemoth.

Traditional religions also place burdens on the faithful (although Jesus says His burden is light). In turn, the faithful view their religion (the manner of serving God), as the rightful master. The faithful should and often do remain loyal to a righteous government, but they oppose government positions when they undermine their own values. Our government is not totally given over, but it is teetering, and it is up to us to steer it back in the right direction. Thank God Smith and Phillips didn’t blink and pushed back to preserve our rights to freely practice our alternative (i.e. traditional) religions. They also highlight the underlying source of conflict today.

Today, the state wants to say you cannot run your business as you choose unless you align with their own values (whether you are religiously motivated or not), but those values are not outlined in our Constitution nor in our traditional religions either (in fact, they are conflicting values). As I noted in last week’s post, Justice Clarence Thomas’s opinion states affirmative action violates the 13th and 14th amendment right of equal protection. The Smith ruling affirms her right of association as protected by the First Amendment. She need not, through her work, promote causes (i.e. associate with) she does not believe in. Further, why should government, the most powerful force extant, be the one to compel her action? The Bill of Rights protects us from such government incursions on our individual freedom.

Colorado demanded its citizens promote the state’s values: you must associate with those government favors, including through your creative work. Otherwise, you will feel the brunt of government power. Is this how government power should be wielded? Isn’t that how Jim Crowe laws were also enforced by government in the past?

More Logical Reasons for All This

Let’s acknowledge graphic designing is a not the typical retail business. Clients enter into a contract for services; they are not picking items from a shelf. A designer must give of themselves and their creativity when hired. They want their work to reflect well on their business in order to attract future clients. This is different than a business which creates blankets, cars, napkins, or bobble-head dolls. Creativity is added to these products and then they are sold to those who they appeal to. The statement the product makes, if there is one, is the creator’s and has been embedded before the product is sold. The creator has no idea who the product is sold to (nor should they care). Lorie Smith (and Jack Phillips before her), on the other hand, are asked to support the client’s statement (or cause). They are generally willing unless the client’s statement conflicts with their own values. They are not attempting to discriminate against any individual for arbitrary reasons; they are not asking for a new Constitutional right, but rather asking acknowledgment of an old one: their freedom of association.

Being forced to work for another, being forced to give of your creativity when you rather not is akin to slavery. Slaves were not paid, of course, but the compensation offered to subvert your own values in this fashion is not worth it. It is a humiliating prospect.

Let’s suppose a business like Wal-Mart refused purchase to someone of the “wrong” gender, race, sexual orientation, etc. Virtually everyone would be outraged, Left and Right, religious, and non-religious. The Hill claims that’s what Ms. Smith promotes, but I say her action is not comparable at all. Consumers would force Wal-Mart to change policy or be punished through boycotts. Such discriminatory practices were indeed countenanced many years ago, but that devil has been exorcised–and is not coming back (despite the Leftist hyperbole which says otherwise). Nobody today advocates for such blatant discrimination, not Ms. Smith, Mr. Phillips, not religious institutions, not anyone. Furthermore, government intervention is not needed in such instances. Public pressure is enough to bring change, and is a more appropriate and subtler vehicle than the big stick of government.

People claim Lorie Smith’s graphic design business, Jack Phillip’s bakery, or like-minded folks might act (or are already acting) in an inappropriate fashion. They claim they covertly refuse the business of gay or LGBTQ individuals. However, they actually have the right to associate with whomever they choose. The Bill of Rights is not designed to limit their choices; it limits the exercise of government power. When Americans side with Colorado over Smith and Phillips, they fail to recognize the most dangerous and potent power and we feed the beast.

Jefferson and Madison warned us about the predations of the federal government (https://teachingamericanhistory.org/blog/madison-and-jefferson-discuss-the-bill-of-rights/). The real problem is government cannot limit itself to the extreme cases; activists inside government use government’s power to suit their own political goals, so policy drifts far beyond the (limited) general consensus. Today’s government officials have learned how to skirt the Constitution’s limitations. Unfortunately, we are not ruled by angels who seek to control their own passions.

If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself. James Madison, The Federalist Papers

The court’s decision also prevents government from favoring certain groups just as with the affirmative action decision. Colorado attempted to align itself with certain individuals (LGBTQ) against other individuals (religious).

Suppose instead, you are viscerally opposed to Donald Trump and all he stands for. You belong to a fairly big crowd, right? Let’s also presume you are asked to design a Trump cake, and then cater a large party where you will be surrounded by hundreds celebrating Donald Trump and his 2024 re-election bid (that’s a big crowd as well). Don’t worry. You will be well compensated. Initially, you were excited by a big payday, but you have no choice but to refuse because you HATE Donald Trump. Then you are sued for unfair discrimination. Remember, the Colorado law says you must serve all clientele. You cannot discriminate against a broad group like Republicans. This individual requesting services now demands you to work for him (on his terms, not your own) or face retribution. It is the law! Condemn Lori Smith for what she has done, but then put yourself in her shoes. Too many focus on one supposed victim but ignore the other.

Those of us opposed to the LGBTQ agenda do not hate LGBTQ individuals, a point I have made repeatedly (fifteen posts emphasize this point: https://seek-the-truth.com/category/trans/). We can oppose the agenda and its values while still supporting (welcoming, loving) LGBTQ individuals. Those who disagree with us deliberately blur the lines to obscure our arguments.

Here is the problem: when your sexual orientation becomes the central part of your identity, when successive generations eager to make their mark continue the (never ending) civil rights fight of the 1960s (won long ago), when you have Diversity, Equity, and Inclusion (DEI) policies and departments deeply embedded within all of business, government, and education, when it is forbidden to hold an alternate opinion, and when the DEI crowd, supported by government policy, turns the fight into a religious war, you have today’s mess. Luckily, the Supreme Court recognized answers to these situations were provided by generations proceeding us. They have returned us to Constitutional principles which still today have relevance.

Back to the Counter Argument

The Hill article explains further their disdain for this decision:

Supreme Court Justice Neil Gorsuch, writing for the majority, agreed: First Amendment free speech means that law may not “compel an individual to create speech she does not believe.”

He relied on a 1943 case holding that schoolchildren could not be compelled to say the Pledge of Allegiance, in which the court said that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 

The analogy is strained. The children could not possibly avoid the compulsion to say the pledge, but no one is required by law to operate a business that is open to the public. Now, however, some of those businesses can discriminate against potential customers or clients. Which ones? It depends on how expressive they are. How can courts decide that? Where is the line? 

The last is an easy question. The government draws no line. Period. The Constitution restricts it from interfering. Businesses draw their own lines. Yes, they may draw lines inappropriately. That is the risk we take. If consumers believe a business discriminates unfairly, media will highlight their actions, the public will weigh in, and the business sales will lag.

Nevertheless, how much did the gay couple who didn’t get a Jack Phillips cake actually suffer? Is this question even worth contemplating? How much comparatively did Mr. Phillips, who endured the legal process for years, suffer? How much will the LGBTQ folks suffer when denied Ms. Smith’s services? I wouldn’t hire her if she doesn’t believe in what I asked her to promote. What sense is there in that? What kind of quality should you expect? Admit it: the real goal is to change her worldview and to compel others to change as well. Her opponents have no respect for her liberty.

The article also says: “no one is required by law to operate a business that is open to the public.” But can’t we agree, one should be allowed to operate a (legal) business if they choose? Perhaps operating your own business is a lifelong goal. Perhaps you studied or trained for this opportunity for ten years. Why should government be allowed to crush your dreams so easily? Why is government also allowed to micro-manage your company: to determine the requisite composition of your workforce, to determine who you must serve, and to say what products you must deliver? Place too many restrictions upon businesses or impose punitive measures when government standards are not met, and folks will be unable to operate the business they have invested so much in. Sure, get a coding job instead. Anyone can do that, right? This is how we want government to act?

Government has broad restrictions placed upon it, so how does it justify interfering in the most basic business decisions? It has crept beyond its bounds and hopes you don’t notice. It may be acceptable when government compels others you disagree with, but wait for your turn. If they haven’t already, they will oppose your business, your religion, or your freedoms some day. You, as an individual, have limited power to resist government. You would have even less if the Supreme Court had not stood up for Ms. Smith and Mr. Phillips. Cling to the rights afforded individuals in the Constitution and demand the government adhere to the limitations imposed on it. Otherwise, you or your progeny will someday regret it.

The article also quotes dissenting Justice Sotomayor:

Justice Sonia Sotomayor wrote in her dissent that “A website designer could equally refuse to create a wedding website for an interracial couple. … A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for ‘traditional’ families. And so on.”

Yes, this could happen, but what is the appropriate response? Bud Light (Anheuser Busch), Disney, and Target sales recently plummeted because consumers disapproved of policy decisions or changes in products. Government wasn’t involved; it was none of its beeswax. A few years ago, Chik-Fil-A was boycotted because of its founder’s views (although, the boycott backfired and business soared). The NFL also lost millions of viewers for becoming too political (https://www.forbes.com/sites/bradadgate/2021/01/08/in-2020-the-audience-of-nfl-regular-season-games-dropped/?sh=6581f7e7482e). They have (partially) retreated from politics and re-built their audience.

Consumers react and businesses respond. That’s how it should be. Government has no role.

Let’s countenance Justice Sotomayor’s concern for a moment: a store reserved family portrait services for traditional families. First, is this kind of thing happening? I searched for “conservative businesses excluding liberal consumers”. This seems to be the nub of her complaint. Perhaps this sort of action is real, but I couldn’t find anything in the news. Still, it is not an illegitimate concern. If it does occur, we should look to consumers, not Justice Sotomayor nor the state of Colorado nor the U.S. government to rectify the situation and restore the proper perspective.

Full court opinion: https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf

Dave https://seek-the-truth.com/about/

For more on my views of the LGBTQ agenda: https://seek-the-truth.com/category/trans/