Gay rights had a victory earlier this week when the Supreme Court correctly ruled in Pavan v. Smith that states are required to put same-sex parents on birth certificates. They’re the parents, stupid: of course they go on the birth certificate. Easy.
At the same time, SCOTUS declared it would hear the case Masterpiece Cakeshop v. Civil Rights Commission. Unfortunately, Masterpiece has been grouped together with other gay rights cases, and is seen as a continuation of the defense of liberty, freedom, and the 14th amendment so sagely championed in Obergefell. But it’s too easy to put things into boxes like “pro-gay” and “anti-gay.” Those boxes don’t apply here.
I want to be very clear: these cases are not the same.
Pavan was about liberty and gay rights. Gay parents have the right to be treated by the government the same way that the government treats straight parents. Pavan was well decided. Obergefell was also about liberty and gay rights. Two people have the right to get married, to spend the rest of our lives with the person that we love, and the state can’t dictate who is allowed to get married. If we love someone and want to get married, if our faith says we can get married, if our understanding of what’s good says we can get married, then the state doesn’t get to tell us that we can’t.
In contrast, Masterpiece is not about gay rights. I’m sorry, my fellow Democrats, but it’s just not. It’s about free speech, just like the unruly conservative media has so noisily proclaimed. A broken clock is right twice a day, and the conservatives are just right about this one. The act of creating a cake is artistic expression. The state cannot force a baker to custom-bake a cake against their will. The state just can’t do that. That’s not how this country works.
Mark Stern at Slate calls this “a standard LGBTQ nondiscrimination law.” Wrong. Forced speech is not standard. Yes, a baker open to the public is required to sell its products to anyone who enters the store. It can’t turn away customers based on their sexuality, any more than it could turn away customers based on their color or their religion. Masterpiece Cakeshop freely admits that. Similarly, restaurants must serve the same food to all, hotels must rent out any of its rooms to all, hairdressers must address all hair, and clothing vendors sell to anyone. But that doesn’t give the state the power to control the cakes that a baker bakes, any more than the state can force a restaurant to offer kosher meals or force clothing vendors to sell magic underwear and the latest Ivanka Trump. A baker cannot be forced to create a custom cake that it doesn’t already offer. It cannot be forced to bake a cake that reads “Sodomy is a sin.” It cannot be forced to bake a cake shaped like our president’s orange head for consumption at a Trump rally (and you’re welcome for those nightmares). And no, a baker absolutely cannot be forced to bake a rainbow wedding cake for a gay wedding. That’s forced speech and it’s anathema to freedom.
The right way to rid ourselves of this bigoted bakery is through Yelp. It’s through word of mouth, through letters to the editor, through picketing outside on the sidewalk. It’s through billboards emblazoned with declarations that “Masterpiece Cakeshop is Homophobic.” That’s how we rightly express our dissatisfaction. But we don’t send in the police to shut down their business, we don’t put them in jail. If Masterpiece Cakeshop loses this case, then it would be an assault on the very same civil liberties that Obergefell proudly championed.
I’m disappointed in the ACLU. They are usually our nation’s free speech stalwarts. The ACLU should be representing the baker.