A Half-Baked View of the First Amendment

The Supreme Court heard oral arguments last month in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, is a Christian who believes that marriage is the union of one man and woman. As such, he refused to make a cake for a same-sex wedding. The case is widely considered to be one of the most important free speech cases in years. Yet, the views of the First Amendment held by defenders of Mr. Phillips are half-baked.

Briefly, here are the facts in the case, taken mainly from the decision against Phillips by the Colorado Court of Appeals.

In 2012, David Mullins and Charlie Craig, a homosexual couple, visited Masterpiece Cakeshop to order a wedding cake. Although they were going to be married in Massachusetts (same-sex marriage was not yet legal in Colorado), they wanted a wedding cake for a reception in Colorado. Because Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages, he declined, telling the couple that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but advising them that he would be happy to make and sell them any other baked goods. Phillips has likewise declined to make cakes with profane messages or that celebrate Halloween.

The unhappy couple then filed charges of discrimination with the Colorado Civil Rights Commission, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA). After an investigation, the Division issued a notice of determination finding probable cause to credit the allegations of discrimination. Craig and Mullins then filed a formal complaint with the Office of Administrative Courts, alleging that Masterpiece had discriminated against them in a place of public accommodation because of their sexual orientation in violation of section 24-34-601(2), C.R.S. 2014. An administrative law judge issued a lengthy written order finding in favor of Craig and Mullins, which was affirmed by the Commission. The decision was appealed to the Colorado Court of Appeals, which affirmed the Commission’s decision in 2015.

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Masterpiece contended that

  • the Commission’s cease and desist order compels speech in violation of the First Amendment by requiring it to create wedding cakes for same-sex weddings.
  • the Commission’s order unconstitutionally infringes on its right to the free exercise of religion guaranteed by the First Amendment of the United States Constitution.

However, the Court concluded:

The Commission’s order requiring Masterpiece not to discriminate against potential customers because of their sexual orientation does not force it to engage in compelled expressive conduct in violation of the First Amendment.

CADA’s proscription of sexual orientation discrimination by places of public accommodation is a reasonable regulation that does not offend the Free Exercise Clauses of the First Amendment.

Phillips ended up having to cease making wedding cakes, a decision that cost him 40 percent of his business.

A petition for a writ of certiorari was filed with the Supreme Court in 2016, and was granted in 2017.

The case has given rise to erroneous opinions about the First Amendment.

From a New York Times op-ed:

Custom wedding cakes are full-fledged speech under the First Amendment. Creating them cannot be conveniently classified as “conduct, not expression” to rationalize state coercion.

From a writer for the Witherspoon Institute’s Public Discourse:

Colorado’s decision violates Phillips’s First Amendment rights.

From an opinion piece in The Hill:

At stake is whether the First Amendment to the Constitution protects all Americans at all times.

Colorado rightfully recognizes and respects the right of African-American cake artists to say no to requests for cakes expressing the racist ideals of the Aryan Nations Church. Colorado should also demonstrate this kind of respect for Jack Phillips’ First Amendment freedoms.

A headline in National Review:

This Is a Fight for the First Amendment, Not against Gay Marriage

From National Review’s The Corner:

Third, if Justice Kennedy views this case primarily through the LGBT lens, then the First Amendment may well lose.

From a noted Christian writer and speaker at ChristianHeadlines.com:

I invite you to pray for Jack Phillips and those who are defending his religious freedom. Pray for the Supreme Court justices to preserve our First Amendment rights.

These views of the First Amendment are half-baked.

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The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

Notice that the First Amendment doesn’t say that Congress shall grant the free exercise of religion and the freedom of speech; rather, it prohibits Congress from interfering with them.

The Constitution was ratified in 1788. In Article I, Section 8 of the Constitution, Congress is granted certain limited powers. Prohibiting the free exercise of religion is not one of them. And neither is abridging the freedom of speech. Nevertheless, the Bill of Rights — of which the capstone is the First Amendment — was added to the Constitution in 1791 at the insistence of the Anti-Federalists. The First Amendment, like the entire Bill of Rights, does not grant Americans any rights. It prohibits the government from infringing the natural rights that Americans already have. The First Amendment merely reinforces the idea that the federal government lacks the authority under the Constitution to abridge Americans’ existing freedoms to exercise their religion, speak, publish, assemble, and petition.

Originally, the Bill of Rights — and hence the First Amendment — didn’t even apply to the states. It was not until the rise of the incorporation doctrine in the twentieth century that the Fourteenth Amendment was viewed by the Supreme Court as incorporating most portions of the Bill of Rights and making them applicable to the states.

Even so, this case has nothing to do with freedom of speech, freedom of religion, or the First Amendment and everything to do with property rights.

Those who argue that government has no authority to concern itself with cake decorating because it is a form of expression, which is a form of speech, and is therefore protected by the First Amendment, err. Cake decorating is clearly not speech. Government decrees and Supreme Court rulings have made unwarranted speech distinctions (such as classifying flag burning as a form of speech) because they misconstrue the nature of the First Amendment.

Masterpiece Cakeshop is owned by Jack Phillips. In a free society, it is he who decides who enters his property. It is he who decides who remains on his property. It is he who decides whom he will do business with. It is he who decides what he is willing to pay his employees. It is he who decides what benefits he will offer his employees. It is he who decides what prices he will charge. It is he who decides what days and hours he will be open. It is And it is he who decides whom he will decorate a cake for.

In a free society, business owners have the right to refuse service to anyone for any reason on any basis. Religion has nothing to do with it. Property rights have everything to do with it.

In a free society, a business discriminating against a potential customer in any form and for any cause must be permissible. It doesn’t matter if the discrimination is because of religion, race, creed, color, complexion, national origin, ancestry, gender, age, sexual orientation, gender identity, health condition, disability, mental state, IQ, height, weight, hair color, eye color, hair style, facial hair, tattoos, scars, pregnancy, marital status, criminal record, political ideology, or socio-economic status. It doesn’t matter if the discrimination is based on stereotypes, fear, prejudice, ignorance, or assumptions. It doesn’t matter if the discrimination is the result of bigotry, sexism, xenophobism, racism, or hate. It doesn’t matter if the discrimination is considered to be insensitive, illogical, irrational, nonsensical, or unreasonable.

If an individual can, right now, discriminate, legally, against a business in any way, for any reason, and on any basis, without fear of reprisal, then why can’t a business discriminate in like manner against an individual? Something to think about.