William Jack walks into Azucar Bakery in Denver in mid-2014. He approaches the counter, places an order, and in the process, he so offends the sensibilities of the management that he is outright refused service. When the incident was reported to the Colorado Civil Rights Commission, they sided with the bakery, saying that it should not be compelled to bake such a cake.
This was the correct decision, of course, but your gut reaction about that decision likely says a lot about your political persuasions; this particular Colorado bakery probably isn’t the one of which you were thinking. Jack was not denied service for requesting a cake for a same-sex wedding. Instead, he was requesting a cake in the shape of a bible featuring the eloquent maxim “Homosexuality is a detestable sin. Leviticus 18:2” written on top.
When the bakery refused to make the cake, Jack filed a claim arguing that he was being discriminated against for his religion. The bakery argued that it was not within the scope of governmental authority to force them to bake a cake whose express purpose was to propagate a message that they found abhorrent. Evidently, the commission agreed, siding in the bakery’s favor.
The commission’s ruling is correct; no one should be legally required to write such a phrase on a cake. I don’t think anyone would find it prudent to use the weight of the government to force some poor baker in Denver to use their craft, their art, to bake a bible-shaped cake with an such an ostensibly anti-gay verse.
That would be ridiculous. Because there is one thing more dangerous than silencing speech: mandating it.
When someone bakes a custom-order cake, the baker is inevitably contributing to the dissemination of the specific message therein. To bake the cake mentioned above would be to support an anti-gay-marriage agenda with which the bakers did not agree.
We can go further; what might happen if a black baker were forced to bake a burning cross cake for a Ku Klux Klan (KKK) member? This is of course a legally untenable reductio ad absurdum, and I’m not using a scare tactic to say that it is the necessary outcome of a decision to the converse. But I bring it up to make the following points: that baking a cake is an art; and that art is necessarily speech. Thus any government mandate to compel the creation of an artistic object would amount to a mandate to compel speech: nothing less than a gross abuse of power.
If you’re not convinced, consider the other position: that these cakes aren’t acts of speech. If they aren’t, then there can be no possible claim of offense; if something doesn’t communicate an idea, then it cannot possibly be offensive. If this is the case then it is incapable of being either offensive or inoffensive, and to force a black baker to create it would not be to inflict upon him any unjust task. Ludicrous.
The thought experiment tells us that baking any such cake must itself be considered incident to an act of speech — that a Leviticus-adorned bible-themed cake is inherently speech about the ethics of homosexuality.
Yet a few months ago, there was an outcry on the left following the 7-2 Supreme Court decision in support of a Christian-owned bakery who refused to make a wedding cake for a gay couple. Their decision was decidedly narrow, as the court did not rule on whether religious objectors to same-sex relationships are exempt from anti-discrimination laws and can refuse to serve gay customers.
But despite the relative insignificance of the ruling, it is still an important issue to consider, and its importance will only increase with gay marriage’s legalization by the Supreme Court with the 2015 Obergefell v. Hodges ruling.
To force a Christian baker to bake a wedding cake for a gay couple, just as it is to force a liberal baker to bake an anti-gay wedding cake, is to force them to implicitly support the advancement of gay marriage, an institution to which they are opposed.
Note what I am not arguing: I am not advocating that a shop owner be permitted to refuse service to someone because of their sexuality, nor should they be able to deny service for any immutable characteristic of a person: race, religion or gender. But in order to preserve the individual liberty, the most destructive thing a government could do would be the issuance of a catchall decision that forces someone to speak out against what they believe.
I cannot imagine a more gross, more reckless or more dangerous abuse of judicial power. This country was built on the idea that individual liberty is an irrevocable right; and upon that premise, our government has endowed its citizens with greater freedoms than those of any other civilized state. These ideas cannot be viewed as pithy truisms. As soon as they are, the whole system is just a generation away from tumbling down.
The Court decided correctly. To force someone to bake such a cake is to force them to speak out not only against their own politics, their own ethics or their own conscience, but it is to force them to speak out against their own religion. This would be no sweeping victory for gay rights; it would be only a forfeiture of freedom.
Grant Osborn is a College Senior from Springfield, Ohio.