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The Denver Post Successfully Lowers Public Intelligence
The reverberations of the Supreme Court’s taking up of Masterpiece Cakeshop v. Colorado Human Rights Commission continue to ripple throughout the culture.
Today, we see in The Denver Post, a fairly predictable but nonetheless disappointing act of public stupefaction in the form of a house editorial on the topic. The Post‘s editorial board urges the Court to rule against Jack Phillips on the grounds that Charlie Craig and David Mullins (the occupants of this crash-test vehicle of litigiousness) are the real victims in this debacle.
Breaking down the “logic” purported in this editorial is revealing of the intellectual vacuity underlying the entire enterprise. First however there is the matter of the facts which are in dispute:
Charlie Craig and David Mullins were planning for the happiest day of their lives when, unbeknownst to them, they walked into a bakery owned by a person harboring such prejudice against same-sex couples he refused to bake them a cake.
“Unbeknownst to them”? It beggars the imagination of any thinking person to contemplate that this, and its many parallel cases aren’t part of an overarching strategy by gay rights activists to press their advantage while they have the proverbial wind at their backs. Of course, that raises the dread specter of “conspiracy” but just as geese don’t plot collectively in smoke-filled Canadian taprooms to fly south for the Winter, the attitude which animates those who are most aggressive in seeking redress for past grievance against gays don’t need to be issued orders regarding where and how to march.
The notion that Craig and Mullins were simply minding their own business and were pounced upon by some hateful Christian bigot is approximately equivalent to saying that a bull is at fault for goring a matador who willingly entered the ring intent upon skewering a bovine. To deliver the punchline of an old (but hilarious) joke, “But sir, the bull does not always lose…”
The Post‘s mind-numbing argument continues:
Phillips must argue it is the cake itself — not the decorations or words written in icing — that is his expression. Phillips denied the couple service before a conversation was ever held about what they would want their wedding cake to look like. It’s the combining of flour, sugar and eggs that must be the expression, and Phillips said he cannot in good Christian conscience allow his cake to express itself at a gay wedding.
In a similar vein, one would expect Phillips then to be equally as unwilling to provide chocolate chip cookies to a gay couple’s anniversary party because it was an expression of celebration against his religious beliefs.
The problem of course is that it’s unlikely that anybody has actually asked if that’s the case. This is a beastly misunderstanding and or intentional mischaracterization of the obvious difference between personal services engaged in between professionals and their clients and the arm’s-length transactions engaged in by people billions of times per day in the same way you might purchase a pre-made deli sandwich at Wal-Mart.
The Post seems to think that there is only one category of exchange: goods or widgets produced by anonymous or interchangeable producers. If that were the case, why wouldn’t Craig and Mullins have been satisfied with any old cake – say, from a Duncan Hines box – which would no doubt fulfill the same function? The answer of course is: it’s a special occasion and they were seeking the special attention of a skilled artisan to assist in celebrating that occasion.
But, more on this distinction later. The editorial continues:
Say an artist who advertised his services to the public as a painter of commissioned works refused his services to an interracial couple because interracial marriages violated his religious beliefs. Say he denied the services before discussing what the painting would be of, but only that it would be a gift for the couple’s anniversary. In both cases it seems clear to us that the product for sale is far less expression than it is a tangible good — paint on canvas and icing on a cake. Neither product is for public display beyond the wedding venue or a private home, nor do the products necessarily contain an overt expression of opinion or belief that the maker would be forced to participate in.
This is the nut of the Post‘s intellectual incoherence and incontinence. To agree with the Post‘s logic one would have to concede that there is no difference between a custom portrait created by a trained artisan and the reproduction of a stock image being mass-produced on a large format printer. Just as one would think that the picture frames in the homes of the members of the Post‘s editorial board aren’t populated by the anodyne sample photographs that such items come with, so too are the services provided by professionals not an item to simply be pulled off a shelf and handed over to any and all comers. You become implicated in the circumstances of an event by agreeing to provide your talents to it in a way that factory workers making interchangeable products are not.
It pays to provide a real world example of this phenomenon. In my capacity as an engineer I have had occasion to provide consulting services for clients who have sought out my expertise. If, in that practice I had been approached by members of the Church of Scientology who wanted me to provide them with a set of engineering documents for the development of their new church/indoctrination center, I would have refused such an offer on the grounds that I find the Church of Scientology to be populated by sinister individuals who ruthlessly separate the gullible from their money and bully people who disagree with them or point out that fact.
Is that “religious discrimination”? You bet. But is it irrational discrimination that should be illegal? Absolutely not.
To agree to perform personal services for such a disreputable organization would necessarily indicate that I am not merely a disinterested bystander but that I tacitly approve of their enterprise – certainly enough that I am willing to take the filthy lucre of their ill-gotten gains. But according to the Post‘s logic, my ability to govern my own affairs in this fashion is trumped by Tom Cruise and David Miscavige’s pathological need for me run AutoCad for them.
The editorial closes apocalyptically:
Should the high court rule in Phillips’ favor, the justices will have opened an ungodly Pandora’s box of adverse consequences across the land.
It used to be that having “discriminating taste” was considered a compliment. Indeed, the ability to discriminate is the ability to judge Michelangelo’s David to be an infinitely superior piece of art to Andres Serrano’s highly questionable “Piss Christ.”
Merely because I discriminate against strawberry ice cream in favor of chocolate when selecting an after-dinner treat doesn’t mean that the makers of strawberry ice cream have a sound legal case against me for my bias. Neither should anybody have to justify their preferences in regard to whom they choose to extend their services. Yet the insistence – nay, the requirement – that I draw no discernment between the strawberry and chocolate is exactly the sort of culturally homogenizing effect that the Court failing to rule in Phillips’ favor would have.
Beware those who would tell you that all flavors are strictly equal, because lurking behind that facade is likely the unspoken presumption that some flavors are more equal than others.
Published in General
Well said.
It was so good that you were struck dumb?
That’s unlike you!
Do you have a right to health care? In other words, do you have the right to compel a professional to perform services on demand? How can you make a contract with a professional if you already have a legal right to compel his services? The philosophical foundation of any contract is that both sides come to agreement on the services rendered. The idea of a compelled contract is internally incoherent.
Do you have a right to compel a professional? No.
Couldn’t think of anything to add.
There’s no need, obviously. The only outstanding issue is the price, because the fact that you will provide the service is predetermined.
It’s extremely unlikely that the plaintiffs could not have found several bakeries nearby which would have been glad to make them a cake. Instead, they targeted a guy to destroy. Wiser minds would counsel gay activists to respect those who differ with them.
I’ve seen this spurious argument all over the web. Could someone please point me to a religion that makes distinction on skin color?
Weeeeellll… it’s arguable that the Church of Jesus Christ of Latter Day Saints made such a distinction until the 70’s, claiming in effect that blacks had the mark of Cain upon them. Now, they clearly don’t do this today, but the more pressing question in my mind remains: why would an interracial couple want an overt racist to do such work for them? Particularly with the force of government behind them? It just makes no sense.
Schadenfreude?
Sadomasochism, then.
“From hell’s heart I stab at thee… For Hate’s sake I spit my last breath at thee…”
Here’s where leftist “logic” breaks down on me:
You mean without a food taster? If they honestly believed half the propaganda that spews from their mouths you’d think they’d be more circumspect about what they put into them.
But let’s face it, they don’t believe their own rhetoric. For too many people the marriage act itself is a political statement (which is not exactly a valid reason to get hitched in the first place.)
If this goes 5 to 4 in the wrong direction. How many cakes will be. Oh, I had a bad day today, this was the best I could do ! Happy to give credit .
It’s interesting to see the left cry “bake the damn’d cake!” while at the same time insisting they don’t have to serve people wearing MAGA hats, and isn’t it awesome when musicians cancel concerts in homophobic states like North Carolina because they won’t let men use the women’s bathroom?
The left demands that everyone must serve them but declares their own right to discriminate.
FIFY.
Okay. But I think they’d enjoy knowing that they infuriated us. Rather, I think one needs to take the approach that we’re the grown-ups here, and they are just the tyrannical spoiled children engaging in negative-attention-seeking behaviors.
I seem to start sentences this way too often, but: As A Gay Man… I am increasingly bothered by the use of my sexuality as a weapon to beat people (often my co-religionists) over the head. Although we should acknowledge that many, many people – such as the editors of the Post – quite genuinely do not think that it is admissable to distinguish between sexual expression, identities, practices, call them what you will. Indeed, the likening of such discrimination to the Jim Crow South is the strongest card in their deck, and (I repeat) they honestly believe the cases to be synonymous.
I do think there’s a good theoretical argument to be made that no private business or club should have to explain to whom it will or will not offer service. But that’s not practical right now, so let’s assume that, if this were the case, no black person would be served at a private business south of the Mason-Dixon. Can such a law be allowed to stand?
Does it matter that this gay couple could easily have found a cake elsewhere? I believe it might (under ‘public accommodation’) but I’m open to correction. For the Post, of course, it makes no difference: the behavior of the owner should be illegal.
“A person harboring such prejudice against same-sex couples he refused to bake them a cake” is a deeply stupid comment, but if it has been decided that the only possible argument against same-sex marriage is irrational animus, then such comments will be written with a sense of righteous indignation. There are of course perfectly good arguments against same-sex marriage, and maybe SCOTUS will hear them (and thus re-litigate Obergefell).
There was an equally obnoxious case in Belfast last year, in which a baker who would sell a generic cake to a gay couple, but not create a cake, was nonetheless found guilty under Human Rights legislation. Even if Mr Phillips refused to sell a generic cake, he would still have provided his implied approval for a situation to which he could not give his approval, and – the Post‘s argument be damned – this would have been legitimate public knowledge that could have been shared by the couple in question. And if he were in the same position as the Belfast baker, he would have been devoting his professional time and creativity to the product, which is a statement of approval beyond implication.
I think refusal to create is stronger legal ground than refusal to sell; but, either way, the real question for SCOTUS is simply whether it shall be legal to hold Mr Phillips’ opinion in the public domain.
The issue here as I see it is tyranny. Who in there right mind would want to make someone mess with their food that didn’t want to. Answer , no one. It is not about a cake. It is about, ” you will like and celebrate my conduct” ! And if not you will pay.
Like Negan
This is the Ashers Bakery case. There’s a little more to it in that the bakery was asked to make a cake with a picture of Ernie and Bert (or is it Bert and Ernie?) of Sesame Street-which is fine- but also to put the slogan “Support Gay Marriage” on it. The bakers have lost at every step and now are headed to the UK Supreme Court.
I will assume that this is hyperbole and you don’t actually believe this.
As typical, the comments remind me of a point I’ve been trying to articulate for a while now. It relates to false analogies to Jim Crow.
We refer to “Jim Crow Laws,” but I think the “unwritten” social coercion was more troubling. There was a time when, even though there was no written law against it, if a baker provided a wedding cake to a mixed marriage (certainly racially, but perhaps even between a Protestant and a Jew or Catholic) that would be the last wedding cake he or she sold in that community. Although not enforced by the “state,” the social sanctions were tantamount to formal governmental sanctions. If a state referendum can be a “legislature,” perhaps unchallengeable social conventions can be “laws” for purposes of the 14th Amendment.
From a game theory perspective, government anti-discrimination laws solve the “first mover” dilemma, in which several players want to move, but none wants the bear the consequences of being the first to do so. Anti-discrimination laws force everyone to move at the same time and prevent social coercion from being applied to an isolated business.
This might justify government intervention when prejudice obtains the force of law in a community. But as the social consequences of violating convention wanes, so does the justification. Thus, the Voting Rights Act (and other anti-discrimination laws), while fully justified at the time of adoption, can become oppressive as social conventions evolve.
If this is true, this case would have been more interesting if brought 25 years (to be safe) ago, when a baker who wanted to provide a cake to a gay “wedding” might have feared social repercussions. Of course “wedding” would have been euphemistic, not state sanctioned. Those claiming this was the first step towards state sanctioned same-sex marriages would have been ridiculed for such a hyperbolic straw man.
But in the case at hand, it is the state trying to coerce the baker. The couple could readily obtain wedding cakes from numerous bakers in Denver without any hardship to themselves or to the baker. But the baker must say that he “loves Big Brother,” and mean it. The irony is that the couple are attacking the individual liberty that is the foundation of their right to live as they please without socially imposed sanctions.
Sexual orientation is not analogous to race. You can enter a business, conduct a transaction and no one will know you’re gay – unless you announce it.
If you’re black and can pull that off… accept my standing ovation.
“Jim Crow Laws” were about government attempting to prevent people from freely associating. Then we had government forbidding association. Now we have government forcing association. In neither case do we have people being free to associate as they please. You know, like in the Constitution. Some believe that without government force, no one would freely associate with other races. I tend to believe that without government coercion, we’d all freely associate just fine.
Great quote. Sometimes it feels like my country has changed more than Khan’s Ceti Alpha V.
I agree in part and disagree in part.
I don’t think that we’d all freely associate, though I think that around 90% of us will. Maybe more like 98-99% when it comes to commercial activity. I think that people should be free to discriminate on just about any basis, in their private activity. The rule is different for government action.
There’s probably a need for an exception, allowing laws against private discrimination, when a seller has some monopolistic power.
“No one” associating with other races or sexual orientations is clearly an overstatement. Some always will, social conventions be damned (which is true of all social conventions). But social pressure may prevent many people from acting as they would prefer if they were fully at liberty. As with many things, the problem is finding the middle path. Many social conventions increase social welfare, others do not, and some once did and no longer do. Burke was right that conventions should not be lightly discarded, but they are social constructs rather than laws of nature. How can we tell when to let social evolution take its course and when to push it along with state action?
Here are the questions I would ask someone who opposes the bakers. Let’s say you are a progressive Democrat and you open a catering business. Should you be legally obligated to cater banquets for any client, providing you have an opening in your schedule? Should you not be able to say “No thanks” to a job offer from a gun rights group, an anti-abortion group, a group working to abolish public schools, or an anti-union group? How about Koch Industries? How about a Trump company? The Ted Nugent Fan Club?
There was a case of a Christian photographer who very politely explained that his conscience would not allow him to photograph the ceremony. He then recommended a friend who was also a professional photographer and said that he would be happy to do it. Didn’t make a bit of difference. It was the coercion that mattered, not the photography.
I guess what I’m trying to say is that whatever social evolution might have been taking place, laws forbidding that free association (Jim Crow laws) were state action to prevent that social evolution from happening. I would err on the side of letting things evolve naturally given how the state still hasn’t gotten it right, first by forcing things one direction, then by forcing things the other.
The big problem here is still what it has been all along- equating gay marriage as a civil right equal to race equality.
Are there any African American people who buy that nonsense? That is an insulting equivalence, and if there were any integrity in the Legacy Media, the lefty civil war would be open and unceasing.
Barry Goldwater stood against the Civil Rights Act on principle. He was against discrimination of every sort against darker skinned Americans and had been a supporter of the NAACP since before it was cool. However, he saw the slippery slope of government coercion that would flow from the CR Act and he believed every private person should be free to do as he or she wished. He saw that the better and most lasting way to stop discrimination was to shame those who practice it.
Now we have the Supreme Court forcing non-heterosexual marriage down our throats, even though we were accepting it more and more because of shaming through the popular culture- shows like Will and Grace and Modern Family, etc. We have loosed a devil by getting the state involved in our private individual conscious. (Sic) (consciouses?)