WASHINGTON — The Supreme Court of the United States heard oral arguments Tuesday for the case Masterpiece Cakeshop, Ltd., et, al. v. Colorado Civil Rights Commission, et. al. As noted on the SCOTUSblog, “Lines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs.”
The case is being touted as the biggest and most talked-about of this court term. The issues raised focus on not only religious liberty, but the boundaries between free expression and discrimination. To what point can a citizen express themselves freely before that personal expression negatively impacts the good of the greater community? When must and under what circumstances does an individual sacrifice personal freedoms in order to live in a safe and open society?
These are not easy questions to answer, especially within a society growing in diversity and acceptance. At the same time, these issues are actually at the heart of the American internal dialog. The country’s own mythology, and its self-awareness, are grounded in the ideals of individual freedom of expression and religious belief, as well as the fostering a community that safely allows for these things without discrimination.
The negotiation of these issues in real time is what leads to cases like Masterpiece.
In a previous article, we broke down the basics of the case and why its important. In brief, the baker Jack Phillips and his attorneys from Alliance Defending Freedom argue that he is a cake artist, and that the Colorado Civil Rights Commission infringed on his constitutional rights of free expression when they attempted to force him to make a cake for a same-sex wedding. Phillips says that, due to his deeply-held religious beliefs, he is unable to create art that celebrates same-sex marriage, something that he is against. Using RFRA language, they also argue that the state’s requirements burden his free exercise of his religion.
The defendants, including the commission and the couple that Phillips turned away, argue that Phillips has neither been restricted from practicing his religion by his refusal to make the cake, nor had his free expression limited. They argue that his business is one of public accommodation and therefore falls under the commission’s regulations, and his refusal to make the cake was discrimination and nothing else.
According to reports, the judges appear to fall along predictable lines. and Chief Justice John Roberts, Justice Samuel Alito, and Justice Neil Gorsch all reportedly appear to “fall squarely in Phillips’ corner,” while the more liberal justices appear to side more with the Colorado couple.
As SCOTUSblog analyst Amy Howe writes, “Even if there are five votes in favor of Masterpiece, those justices will face a dilemma: how do they draw a line that respects the religious beliefs of people like Phillips without, as Breyer put it, ‘creating chaos.’ As the more liberal justices’ questions for Waggoner illustrate, that is easier said than done.”
The case is being watched closely by members of the Pagan, Heathen, and polytheist communities. We turned to a number of people to ask their thoughts on aspects of the case. Each intervewee had much to offer on this heated topic. We summarized their thoughts for the article; however, each person’s full response is provided in a link.
We first turned to Lady Liberty League, which is the the Pagan rights advocacy organization based in Wisconsin. Founder and director Rev. Selena Fox simply said, “I have been doing weddings for more than 40 years and consider wedding related businesses — cakes, flowers, attire, invitations, music, and other services with artistic or creative dimensions as businesses in the public square subject to public accommodation regulations.”
Fox then added that she also has been deeply involved in the arts for long time and is a strong advocate for free speech. She added, “However, art that is related to businesses with government interface — which in this case is a legal wedding — needs to be available to all.”
LLL assistant director Dianne Duggan said, “I fully support freedom of speech and of religion. As one who has emerged from several closets (LGBTQ and Pagan), I am hyper-aware of restrictive and discriminatory language and actions.”
However, she adds that she has a mixed opinion. At face value, as she explains, “It is easy to say that it is the baker’s right to practice their faith and no one can or should interfere with that. In actuality, however, no one was trying to deny their freedom of speech or religion. No one said they cannot practice their faith or talk about it. In making their business open to the public, the baker opened themselves up to whomever might walk through the door for an order. This is no different than a case of racial discrimination.”
She continues on, “While sexual orientation is not a fully protected class (it varies by state), it is on the borderline of being such a class. It takes legislative and judicial action to protect a class of folks and I believe that is where our courts are headed. Had the couple asked for something illegal, the baker could have refused. In this case, there was nothing illegal.”
Duggan agrees with Fox that the limits of constitutional protections end when a business is opened to the public. Duggan says, “Because they run a business open to the public, they cannot deny a class of customer.” (Duggan’s full response)
The protection of free expression entered the debate because Phillips considers himself an artist. We asked two Pagan artists about their own experiences facing clients with whom they may not agree fundamentally or religiously, and their thoughts on the boundaries between free expression and overt discrimination.
Allan Spiers said he has created art that was contrary to his own personal beliefs. Spiers is a graphic designer, photographer and artist. He is also co-owner of the Voudou Store. He explains, “One of my main businesses is as a graphic designer. I specialize in political advertising and have done work for both parties. I have had to do a lot of work that pertained to ideals that did not align with my own, and I was completely okay with this because at the end of the day, I am getting paid. As a business owner it isn’t my job to cater to only my point of view, but solely the point of view of the client who hired me. That is the cost of doing business.”
Spiers adds that he did turn away one project that was particularly problematic. “It was an anti-gay smear piece paid for by the Republican party. That was where my line in the sand was.”
He explains, “In my opinion, freedom of expression is something that is personal. When that expression extends beyond the artist as an individual and starts to effect other people, whether it be hate speech meant to stand in the way of the liberties and freedom of others, or something that excludes a specific community or communities of people, it should not be protected.” (Spiers’ full response)
Laura Tempest Zakroff agreed with Spiers, also delineating between arts and crafts sold in a business open to the public versus art sold or created other ways. She says, “When you are a private/independent artist, you can choose to paint/make art of whatever you want … Want to make photos of only gay men for your portfolio and shows? Great! That’s your art, and you’re probably paying your models, versus them paying you. Want to paint the female body exclusively? Then that’s your choice and expression – so if someone says, “hey, could you paint a picture of my horse?” it’s not discrimination because it’s not the kind of work you do, and the point of your artwork isn’t to satisfy a service.”
She continues, “When you are an advertised service industry with a brick and mortar location on the street then picking and choosing customers solely on their religion, color, gender, or sexuality is plain discrimination.”
Zakroff herself is an artist, performer, and author. She is and has been both a business woman in some instances and an independent artist in others. When asked if she has created art that is contrary to her own beliefs, she says that, in a way, she does that regularly. “I paint deities that I do not personally work with.” However, she adds that it isn’t that she doesn’t believe in the deities, it is just that she doesn’t work with them. (Zakroff’s full response)
Both Zakroff and Spiers agree strongly that this was a clear case of discrimination. Spiers says, “Regardless if one considers this free expression of art or not, it is still hate,” and Zakroff notes, “This case is not about artistic expression nor beliefs – it’s about getting a pass at being a bigot and a crap businessperson.”
Next we turned to two activists and vocal proponents of freedom of religion. Casey McCarthy is a Druid from Denver, who has recently made news for his aggressive work to offer support to the Sioux nation in their struggle against oil pipelines. Ritualist Eric Eldritch is based in Washington D.C. and has been involved in interfaith ministry for years. He is a Radical Faerie and a member of Circle Sanctuary and Stone Circle Wicca.
McCarthy took a more philosophical approach noting the larger picture to which this one case points. He says, “This is an ethical, ontological, and sociological query that bears close examination. It comes down to a very important dialectic which sits central to many of the themes we are seeing in our sociopolitical environment. This being a call for secular humanism vs. religious expression as the modus operandi for resolution of conflicts. In my opinion, our society is trying to move in the direction of compassion, kindness, and mutual acceptance for a myriad of life experiences by adopting a stance of personal accountability and responsibility for one’s actions towards other people.”
He believes that the case is a demonstration of the struggle happening as we evolve as a culture. “We are seeing a terrible upsurge in regressive thinking which wants to place the authority back on an externalized viewpoint. Rather than looking at themselves and going through the pain of realization of personal responsibility for what their privilege has cost the rest of humanity.”
Theologically speaking, McCarthy says, “As a practicing religious polytheist, I am all for defending religious freedoms, including freedom of speech,” but he ended by saying, “You don’t get to claim religious exemption from anything that involves causing harm to others.” (McCarthy’s full response)
Eldritch also takes a broader approach when considering the case. He says, “This debate on the national stage, reminds me of two concepts used by activists in general and important to Pagans in specific: pluralism and intersectionality. We are the legacy of our ancestors who dreamt of many people of many cultures, beliefs, norms and identities living side by side purposefully and peacefully. As Pagans we understand the principles of respect shared resources, the elements teach us we are not only interdependent for breathe, heat, water and land, but also for health, safety and commerce.”
Having just recently enjoyed his own wedding, Eldritch notes that his spiritual work has taught him “not [to] treat people as issues” or to handle all relationships as “subject-subject” rather than “object-object.” However, the court system and commerce caused blur lines in this respect.
He adds that he sees these type of issues, in which subject and object are blurred, playing out in his own communities, and he advocates for radical respect, adding “This ‘cake and commerce’ debate has no real resolution between people who cling to their principles.”
Taking on his seasoned role as a minister, Eldritch adds, “Let’s pray to our god/dess/es for radical respect and positive transformation. We are all in this together.” (Eldritch’s full response)
The Masterpiece Cakeshop case does, as noted by our interviewees, point to fundamental issues that are currently being negotiated within contemporary society. Where are the boundaries between free expression and discrimination? When does religious belief have to take a back seat to the protection of the communal good? Can a wedding cake constitute expressive art?
The final decision is expected to be delivered in summer, 2018. We will continue to update this story as needed.