Having their cake and eating it too: The fight for civil rights and religious liberty are one

Note: This essay on the topic of religious freedom came out of a class on opinion journalism taught this past spring by Clemente Lisi, a journalism professor at The King's College in New York City.

(COMMENTARY) There are 244 custom wedding cake vendors in the Denver area. In 2012, one of those vendors disappeared from that list because of a case that has reached the Supreme Court this term.  

Masterpiece Cakeshop was forced to suspend its custom wedding cake business, which cost the owner 40 percent of his income. Masterpiece no longer makes custom wedding cakes because it's owner, Jack Phillips, is committed to running his business in a way that is consistent with his faith and religious convictions. Phillips had always refused to make cakes that express things contrary to his faith. He commonly refused to make custom cakes that celebrated the use of alcohol, Halloween, divorce and ones featuring erotic content for bachelor parties.

“ Phillips has the right to freely express that which he agrees with and to freely refuse that which he does not. It is a violation of his rights to require him to make a cake that expresses a statement that he has a conscientious objection to. ”

In 2012, his convictions led him to refuse to make a custom wedding cake for a gay couple. He defended his refusal with appeals to the First Amendment rights of free expression and religious freedom – although opponents say Phillips’ appeal shows America ought to relax its grip on these rights to promote tolerance. This view is tragically short-sighted. Stifling so-called discrimination at the cost of fundamental freedoms would be a loss for all Americans, including those in the LGBTQ community. 

Phillips’ actions were not the simple “unequal treatment” that Colorado’s public accommodation laws are rightly seeking to prevent. The lower court’s ruling called Phillips’ actions unequal treatment because he does make custom wedding cakes for heterosexual couples and not homosexual ones. The court ruled that this same service must be available either to everyone or no one. This, however, misconstrues the fact of what Phillips’ actions really meant.  

It’s been nearly three years since the Supreme Court ruled in a landmark case that the Constitution provide same-sex couples the right to marry. The justices are soon expected to render a decision on whether it also protects business owners with religious objections from providing their personal wedding services to gay couples. 

“Freedom of expression is what can create change of an individuals’ beliefs. Government protections are often only a superficial solution. ”

A wedding cake is a symbol and is therefore deeply expressive. For someone like Phillips, who holds the sincere belief that marriage is between a man and a woman, the statement made by the wedding cake of a homosexual versus a heterosexual couple is different. The one is a statement they are willing to make: this heterosexual couple is in a true marriage and ought to be celebrated; the other a statement that Phillips’ sincere conviction could not make. The cakes are different pieces that express different realities. They are distinctly different services for Phillips. 

Phillips has the right to freely express that which he agrees with and to freely refuse that which he does not. It is a violation of his rights to require him to make a cake that expresses a statement that he has a conscientious objection to. Conflating Phillips’ actions with the simple bigotry is flippant imprecision. Phillips was clear that he would happily sell the couple any of his other goods. His refusal to create their wedding cake was an exercise of his religious liberty and free speech. Phillips refused to personally express the message that would be communicated by this couple’s wedding cake. 

While public accommodation laws that protect minorities from discrimination are important, it ought to be remembered that they are a far different echelon of legislation than the Bill of Rights that sought to enshrine the essential rights necessary for a free and just society.  Even if Phillips' actions were true discrimination, the supreme court must consider what risk it is willing to take by forcing a small business owner to do something contrary to their conscience. The single goal of all the constitutional protections of individual rights was to protect the free choices of the people against an overbearing central government dictating their lives. 

Historically, the exercise of free expression has been essential to the progress of civil rights. If it was not for the exercise of free speech by Martin Luther King, Jr., the civil rights movement of the 1960’s could not have been nearly as successful. Even compassionately motivated government curtailment of free speech and expression is a deep danger to civil liberty in the long run.

Regulating free expression can never solve the true issue of discrimination. The injustice of social discrimination is messy because it takes place within the human heart. None of the varied expressions of discrimination will go away until the root cause of prejudice within individual minds can be changed. Freedom of expression is what can create change of an individuals’ beliefs. Government protections are often only a superficial solution. 

If we compromise our freedom of conscience and expression, then we cripple ourselves in the pursuit of achieving actual justice and equality for everyone. Coerced conformity to majority views is not justice–and it is the farthest thing from tolerance. Phillips never expressed hatred or cruelty. Instead, he was merely requesting not to create an expression for something that violated his personal convictions. 

America cannot have the authentic dialogue and exchange of ideas necessary to change the tide of social prejudice that exists within any camp unless we have freedom of expression and belief. The so-called indignity of being gently refused a wedding cake at one bakery among 244 others is not worth endangering our civil liberties, the very lifeblood of just and free societies. 

Freedom of expression enables all other social liberties. Endangering the sanctity of the First Amendment in the pursuit of civil rights is nothing more than the proverbial act of sawing off the branch you are sitting on. It is in the best interest of America – including members of the LGBTQ community – that First Amendment rights of all people continue to be honored and protected.