That Takes the Cake

The Supreme Court ruled 7-2 in favor of Jack Phillips, the Colorado baker who refused to bake a cake for a same-sex wedding. Now, you all know the Curmudgeon loves his facts, so let's review the facts in this case, and ignore the media hype (on both sides).

In 2012, David Mullins and Charlie Craig went into Phillips' bakery and asked him to bake them a cake for their wedding. Phillips declined, stating that he couldn't create the cake because doing so would violate his religious belief that marriage is between a man and a woman.

Mullins and Craig filed a complaint with the Colorado Civil Rights Commission, which ruled in their favor. Phillips filed suit with the Court of Appeals, and the case eventually found its way to the highest court in the land.

Phillips argued that his cakes are works of art, and that they represent a message - in this case, a message he couldn't agree with due to his faith. Mullins and Craig argued that, because they hadn't requested any kind of overt message on their cake, Phillips wasn't refusing on the basis of his beliefs, but on the basis of who they were and whom they loved.

Mr. Craig: "He simply turned us away just because of who we are instead of what we asked for." (See below for the refutation of that assertion.)

And so the court deliberated. And the court decided.

So armed with those facts, here's the Curmudgeon's take. But first, a disclaimer: the Curmudgeon is not herewith opining on whether same-sex marriage is right or wrong. He is merely taking the facts of this case as presented above, applying simple logic in an unbiased context, and on that basis providing food for thought, in the hopes that those not predisposed to one partisan view or another on this topic might consider the truth that there are two sides to every story, and that we all have the right to patronize a business or not based on its, and our own, values.

First, Mr. Phillips did not refuse to bake the wedding cake for Messrs. Mullins and Craig because of who they are and whom they love, regardless of what they may claim. Mr. Phillips offered to bake them anything else they wanted, so long as it wasn't a wedding cake. This proves that he was not refusing service to them, as they claimed; he was refusing a particular type of cake that sent a particular message that ran counter to his faith.

As an aside, this puts the lie to the claims by many on the left that Mr. Phillips refusal of Messrs. Mullins' and Craig's request hearkens back to the days of refusing to serve blacks due to the color of their skin.

Horsefeathers. The Curmudgeon lived through the Civil Rights movement, and remembers those struggles from his youth. In those days, a business would refuse to serve a black person, period. In this case, Mr. Phillips refused to bake Messrs. Mullins and Craig a wedding cake. Period. He had no issue serving them in any way that didn't send a message that violated his Christian beliefs, whether one agrees with them or not (and there are theological arguments both for and against his view). He would bake them cupcakes or cookies, but not a wedding cake.

Indeed, not only did Mr. Phillips offer to bake the two men any other baked goods, he has since claimed that he will gladly bake - other than a wedding cake - anything for any member of the LGBT community. In fact, he took that a step further: he stated unequivocally that he would not bake a cake that sent a message disparaging any group or person, such as an anti-LGBT message.

Mr. Phillips: I will "serve anybody who comes into my shop," but I will not "create cakes for every message."

Two other points of fact are relevant here. First, same-sex marriage wasn't even legal in Colorado at the time Messrs. Mullins and Craig entered Mr. Phillips' shop with their request. Their wedding would be held in Massachusetts, where same-sex marriage was legal at that time; the cake was for the reception, which would be held when the couple returned to Colorado.

So - strictly as a point of law - how can the Colorado Civil Rights Commission rule that Mr. Phillips was discriminating on the basis of sexual orientation, when that state's own laws forbade same-sex marriage at the time?

Score one for the rule of law, regardless your beliefs about same-sex marriage.

Second, the majority opinion in this "narrow" 7-2 ruling was penned by none other than Justice Anthony Kennedy - the same Justice Anthony Kennedy who penned the majority opinion in Obergefell v. Hodges, which established in 2015 that same-sex marriage is legal in all 50 states. In a truly narrow 5-4 decision.

This puts the lie to any claims of bias on the part of the court based on its composition now vs. then. Justice Kennedy understood the facts, and understood the difference between true discrimination on the basis of sexual orientation and the facts as they pertain to this matter, which is something different altogether.

Then, there's this. In 2015, internet evangelist Joshua Feuerstein recorded his phone call to a Florida pro-LGBT bakery requesting a cake for a pro-traditional marriage event, with the words "We do not support gay marriage" inscribed on the cake.

That bakery not only refused to bake the cake, they hung up on him. And then, when he made the taped phone call public, the bakery's owner threatened litigation. Feuerstein took down the youtube video of the call, but the bakery's owner re-posted it and contacted the FBI seeking to pursue criminal charges.

Double-standard, anyone?

But here's the thing. This issue is not about discrimination. It's not about refusing service on the basis of one's sexual orientation, which is as wrong as refusing service on the basis of the color of one's skin.

And it's not about religious persecution, although an argument could be made to that effect - one vlogger approached several Muslim bakeries requesting a wedding cake for a same-sex marriage, and was refused. While the veracity of that video has been disputed, it's not a reach to assume that Muslims - who believe strongly in the traditional marriage definition of one man, one woman - might refuse to bake a cake for a same-sex wedding.

As would be their right. Because, folks, this is what this issue is about, plain and simple:

Capitalism. Free markets.

See, any business has a right to refuse to serve anyone on the basis of a belief, attire, or some other reason that is not related to that person's sexual orientation, gender, ethnicity, or the color of their skin.

Refuse service to blacks? Jews? Gays? Women? Nope. You can't do that.

But - refuse service to Black Lives Matter because they want t-shirts that say "Down With Pigs"? To a Jewish group that requested banners reading "Jesus Was Not the Messiah"? To a gay person for simply being gay, or a woman for simply being a woman? (I'm not saying that any of these groups ever requested any of these things, but if they did, the owner of the business could rightfully refuse on the basis of the message.)

The Curmudgeon spent his formative years vacationing in Colorado in the 1960s and 1970s. Back then, hippies had discovered Colorado.

For the uninitiated, "hippie" is a term too loosely applied to anyone with long hair, at least back in those days. However, the hippies were a young, counter-culture group whose mantra was "Tune in, turn on, drop out." "Tune in" referred to their music, which was considered very avant-garde at the time - think Woodstock, Country Joe and the Fish, Crosby Stills Nash & Young, etc. "Turn on" referred, in general, to drug use - long before weed was legalized in Colorado. "Drop out" referred to dropping out of society and living communally.

Of course, the hippies later became the yuppies, the Baby Boomers, and became the very establishment they rebelled against, and founded companies like Apple and Microsoft, and became investment bankers and venture capitalists, and made tons of money. They traded in their Country Joe and the Fish for Tom Petty, their weed for Cabernet.

Eventually, most counter-culture movements succumb to the siren song of capitalism. It pays so much better than idealism, after all.

But I digress. As stated previously, the hippies discovered Colorado, a great place to tune in, turn on and drop out back in those halcyon days. And many of the traditional tourism-based Colorado businesses pushed back.

The Curmudgeon still recalls seeing the first "No Shoes, No Shirt, No Service" signs posted in Colorado's stores and restaurants. (See, the hippie uniform included bare shirts and torsos.)

Now, one could argue that those businesses posted those rules for sanitary reasons. After all, who wants to sit at a lunch table next to some unwashed person whose armpits and toes are exposed for all the world to see?

Yet, restaurants the world over serve people wearing tank tops and wife beaters and flip-flops. What's the difference? Could those restaurants really have been trying to keep the hippies themselves out of their establishments?

Maybe. But the hippies didn't sue. Perhaps today they would. But instead, they simply exercised their free-market, capitalistic right (which may be why they eventually gravitated towards capitalism's alluring pull) - they took their business elsewhere.

And, coming full circle - that, boys and girls, is what makes this recent Supreme Court case an issue of capitalism and free markets, rather than one of discrimination or religious persecution.

Let's say you're a twenty-something heterosexual couple planning a wedding, and you strongly disagree with the concept of marriage as being between a man and a woman, despite your own sexual orientation. You learn that the baker you were considering for your wedding cake holds those traditional views of marriage and would refuse to bake a cake for a same-sex wedding. (You could even ask, were you so inclined.)

Simple solution: find another baker.

Or, let's say you're a fundamentalist Christian who holds that marriage is between a man and a woman. You want a birthday cake for your wife to celebrate her 40th, and you're considering a bakery that gets good reviews, but you learn that it's pro-LGBT and you just aren't comfortable with that.

Fine. In a free-market economy, there are lots of bakers; find one that doesn't take such a position.

Or, let's say you're a modern-day hippie, and you want to take the family out to eat without their shirts and their shoes.

Fine ... okay, maybe you'll have to settle for the drive-through at McDonald's, or get grocery store delivery and grill out. In today's America, that's an option - gotta love capitalism.

The bottom line is that you can vote with your checkbook (or credit card, or Apple Pay), and affect the bottom line of the businesses with which you disagree. If you're in the vast majority, those businesses will go out of business.

But as long as Mr. Phillips and his ilk are willing to leave your money on the table - in his words, choosing between his relationship with his God and his business - it's their prerogative to do so. If they can still maintain a viable business, maybe that's just a testimony to the fact that there are a lot of divergent beliefs and values in this world, and there is room for all of them, albeit not without compromise or consequence, economically speaking.

In closing, consider this: what if the left had gotten their way in this case, and Mr. Phillips had been compelled to bake wedding cakes for whomever requested one?

Now, Mr. Phillips was so strong in his convictions that he was willing to stop baking wedding cakes altogether to avoid violating his religious principles. But had he not ...

He'd have been legally compelled to bake wedding cakes for same-sex couples, even though he didn't want to.

And isn't that the crux of the matter? If I were gay, and wanted a wedding cake for my same-sex marriage, and the baker didn't want to bake it, but was legally forced to - would I still want to use that baker? Is not the issue whether the baker wants to? If the baker didn't want to, but had to due to a court ruling, would I feel better about that?

No, I wouldn't. I'd rather give my money and my patronage to a baker who didn't disagree with my lifestyle. That would be preferable to any smug satisfaction I might gain from legally forcing him (or her; let's not discriminate) to acquiesce to my wishes. After all, his views are still his views, and they are still divergent from mine. How could I feel good about doing business with him?

Thus the moral of the story: it's a big world, with a lot of people, not all of whom have the same beliefs or values. There are businesses that are accommodating to all beliefs and values, and some that aren't. Let's all respect our differences, even if we disagree with them. We have the ability - and the right - to choose with whom we do business. Let's do that, and let the laws of supply and demand dictate who will survive and who will not. Forcing a set of mores on business owners creates a slippery slope that we all probably don't want to go down.