Jack Phillips is an artiste. Well, okay, he doesn’t use the French term, but he does call himself an artist. Phillips is the charming fellow in Colorado who, as a self-styled “cake artist,” refused to make a wedding cake for a gay couple who wished to marry. The couple sued, and the Colorado Court of Appeals ruled against him. In a fit of pique, Phillips—instead of going ahead and making the cake for the gay couple—refused to make wedding cakes for anyone. And, predictably, the usual alliance of bigots and religious fanatics (such as the Alliance Defending Freedom) has argued that it is the hapless “artist” who is being punished for the expression of his religion. Curiously, however, Phillips’s legal team is arguing that his right to discriminate rests not upon the “free exercise” clause of the First Amendment (“Congress shall make no law … prohibiting the free exercise [of religion]”), but the more basic “freedom of speech” clause.
The claim seems, on the face of it, quite bizarre. “Artists” generally do not get to choose the audience for their art. I am not aware that Picasso opened a storefront to sell his wares or that he or his agents conducted an interrogation into the social and political views of his potential buyers before selling them a painting. It does not appear that the renowned violin virtuoso Jascha Heifetz demanded that concertgoers fill out a questionnaire stipulating their religious or cultural beliefs before being allowed to listen to him. And yet, Mr. Phillips maintains that “I’m being forced to use my creativity, my talents and my art for an event—a significant religious event—that violates my religious faith.” (Let it pass that weddings are not always “religious events,” and it is an open question whether the same-sex wedding in question would have been one. Would Mr. Phillips have discriminated against a couple of whatever sort who frankly stated to him that their wedding was going to be conducted by a justice of the peace rather than by some cleric? Or, paradoxically, would this pious artist have waved aside his reservations because the ceremony in question would not involve a church?)
Mr. Phillips magnanimously declares, “I have no problem serving anybody—gay, straight, Muslim, Hindu. Everybody that comes in my door is welcome here, and any of the products I normally sell I’m glad to sell to anybody.” Any products, that is, except wedding cakes. But before we lavish praise on the “cake artist” for his open-mindedness, let us pause a moment over exactly what he is saying. He is a fervent Christian—and yet, he is prepared to sell his wares (and here it is unclear whether this includes wedding cakes or not) to people of all faiths and perhaps even to lowly atheists! Well, he can’t be a very good Christian in that case. I mean, doesn’t the First Commandment say, “Thou shalt have no other gods before me” (Exodus 20:3)? And yet, this guy is happy to give Muslims and Hindus the sugar rush they so crave! Something doesn’t seem quite right here.
Isn’t it clear what is going on? Federal and state laws prohibit discrimination on the basis of race, religion, and gender, and neither the “free exercise” of religion nor “freedom of speech” can be used to justify such discrimination. But sexual orientation is not (yet) a protected category, so bigots in certain jurisdictions are free to thumb their noses at gay people in any way they choose.
But the supporters of Mr. Phillips do not quite realize what a can of worms they are opening—or how the tables could be turned on them in certain situations. If sexual orientation is not a protected category, then political preference certainly isn’t. So what is to prevent anyone (whether an “artist” or not) from refusing service, say, to Republicans? Indeed, since the Trump administration has recently proposed new rules permitting corporations and other entities to deny free contraception to their workers if they have not merely “religious” but even “moral” objections, why shouldn’t those individuals—and there are many of us—who have moral objections to the very existence of Republicans engage in similar discrimination? I am mightily inclined to open a shop for the sole purpose of hanging a sign prominently in the window declaring, “NO REPUBLICANS WILL BE SERVED.” (I live in a famously liberal city, so I would not expect to suffer financial harm from such prejudice; indeed, my customer base might actually expand as delighted liberals rush to support me.) On Mr. Phillips’s argument this would all be perfectly legal, and there is nothing that Republicans could do about it.
I am writing this column before Mr. Phillips’s case is scheduled to be argued at the Supreme Court in December 2017, but there is hope that sanity will prevail. In spite of the recent appointment of the fake justice Neil Gorsuch, the deciding vote is likely to be cast by Anthony Kennedy, who has been more and more forthright in his opposition to prejudice against gay people. I also hope that at least some of the more conservative justices recognize the incredible mischief that would result if discrimination of the sort that Mr. Phillips wishes to practice is sanctioned by the court. We really don’t want to live in a society where the owners of every shop we go into will require us to state our preferences on a wide variety of subjects and be able to summarily deny service to any of us whose preferences happen to offend the delicate sensibilities of the shop owner.