On September 7, 2017 the Trump administration’s Department of Justice came out with a ruling that supported a baker that refused to create a cake for the wedding of a same-sex couple. The DOJ filed the motion in response to a pending Supreme Court ruling on religious liberty.
In August 2015, the state of Colorado ruled that the baker, Jack Phillips, broke Colorado law by not making a customized cake for a gay wedding, stating that his refusal to do so went against Colorado’s law that prevented discrimination based on sexual orientation. Phillips argued that baking the cake went against his religious beliefs as a devout Christian. The courts were not swayed and ruled against him.
Many people – including me – believed that the court was wrong, and in June 2017 the Supreme Court agreed to review the case.
In advance of a ruling, the DOJ backed up Phillips arguing that the baker’s creations involve his personal artistic talents and expression, and as such, should be protected by his rights to express his beliefs.
But such an argument also falls flat.
The crux of the issue of discrimination versus religious liberty has to do with the willingness to sell a product that is produced to any and all customers.
If the baker has cookies on the shelf for sale, he must sell it to everyone regardless of race, religion or sexual orientation. Similarly, if the baker makes a customized item – say a wedding cake without any couples or comments on it – he should be forced to sell such cake to any willing buyer, gay or straight.
However, neither state nor federal laws should ever be able to force someone to create a unique item. Ever.
The baker should be able to refuse to make a wedding cake with two men on top of it if he never makes such cakes, in the same manner that a vegetarian restaurant refuses to sell any meat items. The vendor need not cater to a client’s unique demands that are outside the universe of items sold.
Should a baker be forced to bake a swastika cake? Of course not. However, were he to make a cake in the shape of a swastika, he should be obligated to sell it to anyone interested in purchasing it. The baker must similarly sell a wedding cake to a gay couple if it is the same kind of cake that he sells to heterosexual couples.
The Department of Justice was right in arguing that the sate of Colorado went too far in fining the baker. However, the DOJ’s rationale for absolving the baker on the basis of his creative talents being a form of expression went in the wrong direction by inserting the baker into the end-product, rather than focusing on the end-product itself.
Whether an item is already on the shelves or is made custom, the threshold of discrimination should be on the willingness of the vendor to sell that product to anyone. However, a product need not be created or customized to a specification that falls outside the vendor’s desires – whether they be for religious reasons or any other.
Thomas Jefferson understood the possible tyranny of government when he said:
“To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical.”
As part of a common community, all Americans should treat each other respectfully, but the government should never be allowed to obligate a person to create a unique, alien and distasteful product to satisfy the desires of others.
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