On Monday, the U.S. Supreme Court ruled in favor of a Christian baker who cited free speech and religious freedom in refusing to make a same-sex wedding cake. Jeff Amyx, owner of a hardware store in Tennessee that became notorious for a “No Gays Allowed” sign in 2015, called the ruling a victory and reportedly decided to put his sign up again.
One problem: the Supreme Court ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission does not defend his discriminatory practices, and the reasons why Amyx is wrong help illustrate why LGBT activists are also wrong to fear legal rulings that would defend bakers from refusing to make same-sex wedding cakes.
Amyx hailed the news that the Court sided in favor of Jack Phillips, the baker who refused to bake a cake for a same-sex wedding, as an unexpected victory. “I was really shocked because of the track record of our Supreme Court,” the business owner told WBIR. “Right now we’re seeing a ray of sunshine. This is ‘happy days’ for Christians all over America, but dark days will come.”
On May 1, Amyx shared a picture on Yelp, showing himself standing in front of his business. On the door hung the notice “No Gays Allowed,” and on either side of Amyx stood three white boards with signatures of people supporting his decision.
After Amyx first put up the sign in 2015, he later replaced it with one reading, “We reserve the right to refuse service to anyone who would violate our rights of freedom of speech & freedom of religion.”
Liberals and LGBT activists rushed to condemn Masterpiece Cakeshop for inspiring and enabling Amyx.
“The expected outgrowth of SCOTUS ruling this week. Expect more of this,” tweeted Annise Parker, former mayor of Houston, Texas, and president and CEO of the LGBT Victory Fund.
“Well – that didn’t take long. This is the real harm that Justice Kennedy hath wrought,” added Denis O’Hare, an actor best known for his role in “Dallas Buyers Club” (2013).
Well – that didn't take long. This is the real harm that Justice Kennedy hath wrought. https://t.co/ciRnCDDlKT
— Denis O'Hare (@denisohare) June 7, 2018
“Good job, Kennedy,” tweeted LGBT activist Amee Vanderpool, directing scorn toward Justice Anthony Kennedy, who wrote the majority opinion in Masterpiece Cakeshop. “This is the result when SCOTUS ducks settling a complicated legal question. ‘Tennessee hardware store puts up ‘No Gays Allowed’ sign.'”
Good job, Kennedy-This is the result when SCOTUS ducks settling a complicated legal question. "Tennessee hardware store puts up 'No Gays Allowed' sign" https://t.co/3HbDJzFaU3
— Amee Vanderpool (@girlsreallyrule) June 7, 2018
While Vanderpool was correct in saying Kennedy punted on the “complicated legal question,” she and others were utterly wrong to suggest that the Supreme Court ruling in Masterpiece Cakeshop would defend Amyx in any way.
In his ruling, Kennedy explicitly condemned a sign much more narrow than Amyx’s discriminatory notice. “Any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons,” the justice wrote.
Kennedy ruled in favor of Jack Phillips because the Colorado Civil Rights Commission had shown clear anti-religious bias against the baker in considering his case, going so far as to compare Phillips’ religious beliefs with the beliefs used to defend slavery and the Holocaust.
The Court’s majority opinion did not answer the thorny legal question of whether or not Jack Phillips’ free speech enabled him to opt out of baking a cake specifically designed for a same-sex wedding.
Tragically, liberals have attacked the ruling as a threat to the civil rights of LGBT people when it was no such threat. Even if the Court had ruled in favor of Phillips for the free speech reasons he cited, it would not have been a threat to civil rights.
Amyx’s sign, on the other hand, is a clear violation of civil rights and anti-discrimination laws, while Phillips’s refusal to bake the cake is neither.
When a same-sex couple, Charlie Craig and Greg Mullins, asked Phillips to bake them a cake to celebrate their same-sex wedding, the Christian baker refused. In the same breath, however, he offered to sell them any other type of cake for any other purpose. Indeed, when Craig’s mother called to order a same-sex wedding cake, Phillips also denied her, showing that he was not discriminating on the basis of sexual orientation, but on the basis of making a product that would violate his convictions.
Phillips has an exhaustive process for wedding cakes: he sits down and meets with an engaged couple before crafting the cake, so he can put their personality into the design. He often presents the cake at the wedding. Therefore, his artistry in baking and presenting a wedding cake arguably constitutes an expressive act — an endorsement of the wedding — protected by the First Amendment.
While the liberal Supreme Court Justice Ruth Bader Ginsburg argued that a wedding cake for a same-sex wedding is a wedding cake like all others, Justice Clarence Thomas powerfully shot down that argument.
“It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other — without regard to the religious significance his faith may attach to it — than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap,” Thomas powerfully wrote.
On the other hand, Amyx’s sign represents a clear policy of refusing to serve a specific class of people. Amyx is actually doing what Phillips has been falsely accused of doing.
Phillips never excluded LGBT people from his shop. Indeed, he had gladly served Craig and Mullins before. He merely refused to craft a specific cake for their same-sex wedding. In this case, his art would have been seen as an endorsement of a marriage that he does not believe constitutes a true marriage.
His free speech in refusing to bake this cake is exactly what Justice Anthony Kennedy wrote about in the ruling legalizing same-sex marriage, Obergefell v. Hodges (2015). While that ruling gave same-sex couples the right to marry according to the rules of the state, it also vehemently defended the rights of others to disagree with same-sex marriage.
Amyx, however, is not just disagreeing with same-sex marriage. He is not refusing to make custom archways for same-sex weddings (although he likely would refuse such an order, and he would be within his rights to do so). Instead, he is excluding a class of people from his shop on the basis of their sexual orientation.
Such an act is illegal and indeed immoral. Amyx does indeed send the message that LGBT people are second-class citizens to be excluded from his shop, and public accommodations laws exist to prevent him from doing this.
Obamacare promoter Charles Gabba mocked Amyx, tweeting, “Coming soon to a federal court: ‘Selling someone chicken wire and a roll of duct tape would be tantamount to supporting gay marriage.'”
Coming soon to a federal court: “Selling someone chicken wire and a roll of duct tape would be tantamount to supporting gay marriage.”https://t.co/P9fZJ7avpC
— Charles Gaba (@charles_gaba) June 7, 2018
Gaba is right to mock this argument. Amyx’s stand is not about free speech, but about refusing to do business with a specific class of people. Selling warehouse goods is not the same thing as making and selling a same-sex wedding cake.
However, therein lies the rub. Gaba and others would likely argue, as does Justice Ginsburg, that if the Supreme Court granted Phillips the right to refuse to bake a same-sex wedding cake on free speech grounds, people like Amyx would use that argument to discriminate against LGBT people.
Amyx is living proof that some people would attempt to use that argument. However, the issue is fundamentally different. Amyx would be within his rights to refuse a custom project for a same-sex wedding. He would not be within his rights to exclude people who identify as LGBT from his shop, as he seems to have done. There is a fundamental difference, and Americans need to see it.
A recent Reuters/Ipsos poll found that 72 percent of Americans disagree that business owners have a right to refuse LGBT customers on religious grounds. Such a policy — as Amyx represents — is indeed discriminatory.
Jack Phillips’ situation is fundamentally different, however, and it is important for Americans to understand what actually happened in Masterpiece Cakeshop and why it has nothing to do with Amyx’s discrimination.
Some libertarians would argue, and not without reason, that businesses should have the right to refuse service to anyone. Businesses that choose to discriminate would lose customers, so it would be a bad business decision. Freedom of association is a key part of the First Amendment, and Americans should decide with whom they will do business. This is not currently the law, however. Under current law, Phillips is right and Amyx is wrong.
Conservatives may wish to defend Amyx, but they should not feel obligated to defend Amyx in order to defend Phillips. The cases are different, and LGBT activists need to learn this.