On Tuesday, the U.S. Supreme Court heard opening arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving whether or not the government can force a baker to bake a same-sex wedding cake against his convictions. Powerful companies like Apple and Amazon joined with the state of Colorado to argue that government should be able to compel this kind of speech, even though they themselves opposed government-enforced speech in other contexts.
“They are proactively trying to take away the rights of a small business owner, while many of them continue to enjoy these rights themselves,” Jeremy Tedesco, senior counsel at Alliance Defending Freedom (ADF), the firm defending the baker Jack Phillips, told PJ Media.
Two cases suggest hypocrisy on this issue of compelled speech.
Jack Phillips, who runs the Denver bakery Masterpiece Cakeshop, refused to bake a cake for a same-sex wedding in 2012. The Colorado Civil Rights Commission ruled that this constituted unlawful discrimination.
In 2015, however, the very same commission declined to take up an appeal after the Colorado Civil Rights Division ruled that another bakery in Denver, Azucar Bakery, could refuse to bake a cake based on the content of its message.
In March 2014, William Jack requested two Bible-shaped cakes. One would have two groomsmen with a red “X” over them and the messages “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22.” The other cake would have the same image, but with the words “God loves sinners” and “While we were yet sinners Christ died for us. Romans 5:8.”
Marjorie Silva, the bakery’s owner, said she refused to make the cakes because the writing and imagery were “hateful and offensive.” Jack claimed she had discriminated against him on the basis of his creed.
The Civil Rights Division found that Silva did not discriminate against Jack, but said evidence shows she refused to bake the cakes because the requests included “derogatory language and imagery.” In this case, ADF also sided with Silva.
Silva said “in the same manner [she] would not accept [an order from] anyone wanting to make a discriminatory cake against Christians, [she] will not make one that discriminates against gays,” the decision explained. “The evidence demonstrates that [Silva] would deny such requests to any customer, regardless of creed.”
The Civil Rights Commission has argued that Phillips’ case is different because he refused to bake a cake for two homosexual men. But Phillips’ testified that on the very day he refused to bake their same-sex wedding cake, he offered to bake a cake with any other message for them. Just like Silva, he objected to baking the cake because of the message, not because of the people asking for it.
In other words, the commission supported a baker’s free speech refusal to make one cake, but it denied another baker’s free speech refusal to make a cake with the opposite message. That is rank hypocrisy.
While the commission brought Phillips to court, powerful companies signed an amicus brief also opposing this baker’s free speech. Airbnb, Amazon, American Airlines, Apple, Ben & Jerry’s, Deutsche Bank, Intel, Lyft, Marriott International, PayPal, Pfizer, SalesForce, Uber, and Yelp all endorsed the argument that the government should force Phillips to bake the same-sex wedding cake. Apple’s involvement stands out, as the tech company itself fought against government-compelled speech.
In February 2016, Apple refused to develop code to unlock the iPhone belonging to San Bernardino shooter Sayed Rizwan Farook. The FBI got a court order to force Apple to develop the code, but Apple fought back, arguing that the government cannot compel speech, under the First Amendment.
“The government’s request here creates an unprecedented burden on Apple and violates Apple’s First Amendment rights against compelled speech, as discussed below,” Apple’s lawyers argued.
While unlocking the iPhone of a terrorist and baking a cake for a same-sex wedding seem unconnected, in both cases the government sought to compel speech.
“These powerful companies can throw a lot of weight in these cases,” the ADF’s Tedesco told PJ Media. He described Apple’s position as “particularly problematic.”
“When the federal government was trying to force Apple to create computer code, they raised the very same arguments in this case, the right to be free from government-imposed speech,” he explained. “And yet they turn around and say this family-owned cake artist shop in Denver can’t exercise these rights.”
“I think that’s the height of hypocrisy,” Tedesco declared. “If they want to exercise those rights, they have every right to do so, but they shouldn’t proactively try to take them away from everyone else.”
Apple’s hypocrisy is especially concerning because it has partnered with the Southern Poverty Law Center (SPLC), a group known for labeling mainstream conservative groups “hate groups” and pushing for Internet censorship.
Both the American Civil Liberties Union (ACLU) and the companies in the amicus brief argued that Phillips is asking for a unique exemption from civil rights laws. Liberals claim that a ruling in Phillips’ favor would create a “license to discriminate.” Tedesco flipped this narrative on its head.
“The State of Colorado and the ACLU want to carve out an exemption from the First Amendment on free expression,” Tedesco declared. “They are saying the government has this power to coerce artists to create art they don’t want to create.”
In a joint statement on the case, the U.S. Council of Catholic Bishops agreed. “Today’s oral arguments address whether our Constitution’s guarantees of free speech and freedom of religion will be protected by the Supreme Court. Americans of every creed depend on these guarantees of freedom from unnecessary government coercion.”
"Today’s oral arguments address whether our Constitution’s guarantees of free speech and freedom of religion will be protected by the Supreme Court. Americans of every creed depend on these guarantees of freedom from unnecessary government coercion." https://t.co/XJ0NXElNnN pic.twitter.com/slKPM8ClWY
— U.S. Catholic Bishops (@USCCB) December 5, 2017
If Apple and the Colorado Civil Rights Commission oppose government-mandated speech in some cases, they should oppose it in all cases. Anything else is rank hypocrisy.