Commentary: Wedding Cake Debate Will Create a Backlash

This commentary was originally published in the San Antonio Express-News. It is reprinted here with the permission of the author.

“To cake! or not to cake!” that is the question. The judges’ decision is final. And the winner is?

Who knew that cake decorating could be so confrontational? And, as I like to say from the Wedding Cake Liberation Front, “Or a wedding cake could be so fierce.” First, I think it wise to understand what this cake decorating business is all about.

Charlie Craig and Dave Mullins filed a charge with the Colorado Civil Rights Commission complaining that Jack Phillips, owner of Masterpiece Cakeshop, refused to bake a cake to be served at a reception for their upcoming same-sex wedding. The couple alleged that Phillips discriminated against them because they were gay, which would be against Colorado law.

Phillips argued that he didn’t refuse because the customers were gay, but because same-sex marriages are inconsistent with his religious beliefs, and his cakes are artistic expressions protected by his right to free speech. The Civil Rights Commission ruled in the couple’s favor, and after several Colorado appeals, Phillips asked the U.S. Supreme Court to review the case.

So, now, when in doubt about things gay marriage, I always consult my friendly lawyer friend, Bill Goodman.

“The Supreme Court ruling is very narrow. It only held that Phillips did not get a fair hearing by the Colorado Civil Rights Commission, because the commission was biased against his religious beliefs and disparaged his religious beliefs as despicable. It’s impermissible for a neutral government tribunal to take sides or criticize a person’s faith, so the commission’s ruling was thrown out. But the Supreme Court never went so far as to say that Phillips could refuse to bake the cake for religious or free speech reasons and left those issues on the table for future cases. Anybody who thinks that bakers are now free to discriminate against LGBT customers is misinterpreting the case. All it says it that everyone is entitled to a fair hearing of their viewpoints if taken to court. Wouldn’t we all want that?”

Thank you, Bill. I have to chime in as an artist because I see this as a freedom of expression concern. It seems to me that whether cake decorating or painting on the flag, one should have their rights respected concerning freedom of expression. The religion defense always seems a bit silly in the free market place.

But … ? Well, my off-the-cuff reaction from the beginning of this national news, and I know I speak for other gay people, was: Why would you want a person who hates you to make your wedding cake? There are plenty of gay bakers or others who would gladly provide this cake and welcome gay dollars.

Again, attorney Goodman: “Gene, the judge’s decision isn’t final — this is just a technical round. The Supreme Court recognizes that the underlying issues will have to be resolved in future cases. But it does say that we have to respectfully listen to what others have to say. Otherwise there’s no way to reach a genuine understanding.”

Also, there is this matter of that door swings both ways. Will a gay baker also be forced to bake a wedding cake for a religious fundamentalist’s wedding? Or even worse, decorate an ugly cake. Lord!

You know our gay creative standards are much more imaginative than fundamentalists’ creative standards. So I guess we will just have to put this Supreme Court decision with my other favorite one: when the court had to decide whether the tomato was a vegetable or a fruit.

Gene Elder is a regular contributor to Out In SA and welcomes feedback from readers regarding this commentary. He can be contacted via email at: [email protected].

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