Our nation is seeing a surge of “corporate conscience,” where companies make decisions apart from their bottom line. This is good for all Americans. The New York Times recently described the growing “moral voice of corporate America” after a wave of companies, including Google, Airbnb, Uber, and PayPal, severed ties with white supremacist groups in response to the riots in Charlottesville.
This phenomenon is not new, nor is it limited to opposing white supremacy. For years, Pfizer has refused to sell some of its drugs to state prisons because the company doesn’t want them used in capital punishment. Chipotle refused to cater a Boy Scouts’ Jamboree because of the scouts’ then-policy about gay scout leaders. A gay coffee shop owner recently refused to serve a group of pro-life activists, ejecting them from his store. These business owners made moral choices about what they’re going to support.
A similar moral choice is at the heart of the Masterpiece Cakeshop case currently before the Supreme Court. The store’s owner, Jack Phillips, is a baker who is willing to sell any items off-the-shelf in his store to anyone, no questions asked. All he is asking is not to be compelled to use his artistic talent to create a custom-designed cake celebrating an event contrary to his deeply held beliefs. This is a standard that Phillips applies across the board. He does not create custom work that celebrates Halloween, divorce, profanity, or racism.
>> Read the counterpoint: More than gay wedding cake: Why Supreme Court case is about dignity, not dessert
Phillips is not the first baker in Colorado who objected to using his talents to support something he disagreed with, but he’s the first one to be punished for it. Another Colorado bakery refused to create a Bible-themed cake that condemned homosexuality. But here, Colorado upheld these bakers’ rights, explaining that they shouldn’t be forced to create a cake they disagreed with. The state even said bakers have the right to decline to bake a cake for the Aryan Nations Church, or a cake denigrating the Koran.
This double standard was a cause of concern for multiple Supreme Court justices during the recent oral argument in Phillips’ case. Justice Alito called it “disturbing” that a baker could “refuse to create a cake with a message that is opposed to same-sex marriage,” but “when the tables are turned,” Phillips was “compelled to create a cake that expresses approval of same-sex marriage.” Justice Kennedy suggested that Colorado officials demonstrated “a significant aspect of hostility to a religion” and ironically, that the state had “been neither tolerant nor respectful of Phillips’ religious beliefs.”
Critics argue that his actions should not be entitled to protection because his denial of service was offensive. But this was not a consideration when the baker turned away the customer requesting a Bible cake, or when Chipotle refused to cater the Boy Scouts, or when the gay coffee shop owner ejected the Christian group. The Supreme Court has always said that offensive expression is still entitled to First Amendment protection. Otherwise, those who need constitutional protection the most — those with unpopular views — would be protected the least.
Phillips’ opponents also exaggerate his claim and assert that a ruling for Phillips would quickly take our country back to a Jim Crow era where large swaths of businesses are allowed to deny basic services to an entire class of Americans. But the Supreme Court has already laid out factors to protect against that type of discrimination.
When First Amendment rights must be balanced against norms of equal service, the ultimate question is whether the would-be customer can freely access the market for desired services or products. That is not an issue here. Many bakers were eager for the couple’s business; they even received offers for a free cake.
This case really boils down to the following question: Do we want to have a country where the government is allowed to pick one correct view on hot topics like marriage, and to force objecting organizations to use their talents and resources to support that position?
Our Constitution prohibits that result.
That’s why elsewhere, we prioritize the ability of organizations to speak out with a range of viewpoints on important moral issues.
The chairman of Starbucks, Howard Schultz, said it best: “Not every business decision is an economic one … [W]e are fighting for what we love and believe in, and that is the idealism and the aspiration of America.”
Schultz is right: These expressive rights are an ideal worth fighting for. That’s why the Supreme Court should uphold this principle for Phillips, too.
Stephanie Barclay is legal counsel at Becket, a public interest law firm that defends religious liberty for all faiths.
For more on this issue, join Stephanie and other experts for a panel discussion, “For Debate: Can a Baker Refuse to Create a Cake for a Same-Sex Wedding?” at 6:30 p.m. Thursday at the National Constitution Center. To register, visit www.constitutioncenter.org/debate or call 215-409-6700.