When the Masterpiece Cakeshop case first developed in 2012 and when similar claims arose from florists and other creative professionals around the country (including the 111 Cakery in my home state of Indiana), broader culture responded with white-hot indignation and the now-common social media firestorm. In sum, society was certain it had these people pegged. Jack Phillips, Barronelle Stutzman, Blaine Adamson and others like them were exactly like those racist lunch counter owners in the Jim Crow south. And, they deserved to be drummed out of polite society or at least out of business.
But, with a U.S. Supreme Court decision in the books and a few years to wrestle with these claims, it appears that society or at least some legal scholars may be doing a double take on wedding cakes. Here are two thoughts on this:
Cause for Cautious Optimism
First, the obvious. Jack Phillips won the Masterpiece Cakeshop case. As I explained in more detail here, this was a limited decision that focused heavily on the “clear and impermissible hostility” of the Colorado Civil Rights Commission toward Jack Phillips’ deeply held religious beliefs. And, the case did not decide the ultimate issue—the clash between nondiscrimination laws and religious liberty. But, Masterpiece Cakeshop did give credence to Jack’s central argument: he serves all people but cannot, in good conscience, celebrate all messages.
Next, I recently assisted 16 law professors from around the country in filing an amicus brief in the Kentucky Supreme Court on behalf of Blaine Adamson (a Lexington, KY promotional print shop owner that employed individuals that identify as LGBTQ but declined to create t-shirts for a local pride parade). Here’s an interesting fact about this case. A total of fourteen (14) amicus briefs were filed in the case, and only one (1) of those briefs was filed in opposition to Blaine Adamson. Further, the ACLU did not file an amicus brief opposing Blaine Adamson. Though there could be many reasons for this, the ACLU has generally opposed the First Amendment claims of creative professionals such as Blaine Adamson but declined to file an amicus brief opposing his position. So, this development at least raises the question of whether some American legal scholars are rethinking their position on the First Amendment claims of creative professionals.
Now, let me summarize what I am saying (and not saying). Several creative professionals (including Blaine Adamson and Baronelle Stutzman) are still litigating their cases, and this debate is far from over. But—and here is the main point of this post—it appears at this moment that American jurisprudence may eventually recognize the very precise difference between a person providing general services and goods and a religious person engaged in creative work that objects to creating a message contrary to his or her religious beliefs. And, given the state of things just a few short years ago, this is very good news for religious liberty.
Key Takeaways for the Church
As I mentioned when the Masterpiece Cakeshop case came out, the U.S. Supreme Court sided with Jack Phillips when many Christians and church leaders did not. But, these cases are not about cakes, carnations or cool t-shirts (apparently, Hands on Originals has some great swag; I also confess that I have a compulsive habit called alliteration!); rather, they are about the conscience and the right to live and work without fear of government coercion. If a t-shirt maker can be coerced to print a message or celebrate a message contrary to his or her deeply held beliefs, then your right of conscience and the rights of those who operate private religious schools (who appear to be next in line) are in jeopardy as well.
Two important principles are at work in these cases. First, all people should be treated with equal dignity and respect. That is a well-received notion these days. But, we have largely overlooked the second, which is this: disagreement is not disrespect. As former President Barack Obama recently stated, “You have to recognize that the way we’ve structured democracy requires you to take into account people who don’t agree with you.” In light of these principles, a win for a creative professional like Jack Phillips is actually a win for everyone. Why? Because such a decision also protects a baker that identifies as LGBTQ from being forced to create a cake with a message celebrating traditional marriage and an African-American print shop owner that declines to create promotional materials for a KKK rally.
Perhaps I am completely wrong in my sense that society or at least elements of the legal community are doing a double take on wedding cakes. But, I hope not. We need to recover a robust view of free speech and ideological/religious diversity because that is exactly what is needed in our increasingly plural society.