Originally Posted by PaulS
From an OP Ed
Recognizing, perhaps, the weakness of the religious-freedom argument, Mr. Phillips now emphasizes his other First Amendment rights — freedom of speech and expression. His cakes are his artistic expression, he says, and he should not be forced to express ideas to which he is opposed.
I've thought, from the beginning of this, that speech rights and property rights were just as strong an argument as his religious right.
Mr. Phillips makes a good case that he is an artist. So might many others who sell the fruits of their labor to those celebrating a wedding. But that doesn’t give any of them the right to refuse service to people protected under an anti-discrimination law. If the couple had asked Mr. Phillips to write a message on their cake endorsing same-sex marriage and he had been punished for refusing, he would have a more plausible First Amendment claim, since he wouldn’t write that for anyone. But Colorado’s law doesn’t compel Mr. Phillips, or any proprietor, to say anything they don’t want to say, or to endorse any specific message. It requires only that they treat all customers equally.
"Equally" is a tricky word. "Equally" does not mean exactly the same. If Mr. Phillips applies his religious faith to all customers, he is treating them all equally, but not necessarily treating all of them in exactly the same manner or with the same outcome.
Mr. Phillips claims he already does this. He’s happy to sell any of his pre-made products to gay people, he says, or to bake them a custom cake for another occasion.
None of his pre-made products, other than wedding cakes, were baked with any notion that they inherently were related to any principle of faith, other than the right to eat.
What he won’t do is custom-bake anything intended for use in a same-sex wedding. As the Colorado Civil Rights Commission said in ruling for Mr. Mullins and Mr. Craig, that’s a distinction without a difference. Since only gay people have same-sex weddings, he’s discriminating against gay people.
It is not a distinction without a difference. There is a difference between baking a product which specifically applies to a principal of faith, such as marriage, as is a wedding cake, and baking a product that does not specifically apply to that principle, such as donuts or cookies. And, more meaningful, beyond that, there is the distinction that none of his pre-made products were baked specifically for a celebration that is counter to his faith. To custom make, on the other hand, any product with the specific intent to trespass his religious tenets would be an abrogation of his faith. There is a distinction between baking a product intended for general use and baking a product for a specific use. How a customer uses a product is not on the baker. What the baker intends the product to be used for is on the baker.
Some free-speech advocates argue that this case is simply a matter of deciding which sorts of expression merit First Amendment protection and which do not. Cake bakers may be a close call, but what about photographers? Florists? Caterers? Calligraphers? In fact, cases like these have already been brought around the country. If the justices rule for Mr. Phillips, they will be hard-pressed to find a clear limiting principle. And that would render public-accommodations laws like Colorado’s effectively meaningless.
If the Court rules against Mr. Phillips, the limiting principles against government overreach in the Constitution, especially in the First Amendment, will have been breached. Freedom of religion and Freedom of speech were meant to be freedoms held within society, not freedom in some sequestered place, out of public intercourse. Also the right to property will be further constrained than it already is.
Equality before the law will be further reduced to equality of outcome.
This, of course, is precisely the objective of the rear-guard action undertaken by religious objectors who, thwarted in their efforts to prevent gay couples from enjoying the rights and benefits that flow from marriage, are now invoking their own constitutional rights to avoid treating those same couples equally in the marketplace
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