Editor's note: This commentary by Brigham Young University law professor Brett Scharffs, director of the International Center for Law and Religion Studies at BYU, is part of an ongoing Deseret News opinion series exploring ideas and issues at the intersection of Faith and Thought.
On Tuesday this week, the Supreme Court will hear oral argument in the case of Jack Phillips, the Colorado baker who declined on religious grounds to bake a wedding cake for the same-sex marriage of Charlie Craig and David Mullins. Mr. Craig and Mr. Mullins filed a complaint with the Colorado Civil Rights Division, which brought suit alleging that Mr. Phillips was in violation of Colorado’s anti-discrimination statute, which prohibits discriminating on the basis of sexual orientation in the provision of “public accommodations.”
The courts below agreed with Craig and Mullins, and the Supreme Court will decide whether the state’s enforcement of this law against Phillips violates his First Amendment rights of free speech or free exercise of religion.
The most important precedents are two flag salute cases from the 1940s. In the first case, two young Jehovah’s Witness schoolchildren, Lillian and William Gobitis, were expelled from school for refusing on religious grounds to salute the American flag during class. The Supreme Court held that forcing them to participate in the patriotic exercise did not violate their rights of freedom of speech or free exercise of religion. The court emphasized the importance of “national cohesion,” as being “inferior to none in the hierarchy of legal values,” and that national unity was “the basis of national security.” For the Gobitis court, important state interests in promoting unity overrode the conscience claims of the Gobitis children.
The court’s decision triggered the worst wave of religion-inspired violence in 20th century America. Commentators have described what followed as “open season” on Jehovah’s Witnesses, as vigilante groups burned Kingdom Halls, vandalized homes and physically assaulted believers, all in the name of patriotism. Some small-town sheriffs arrested Jehovah’s Witnesses for provoking violence or for their own protection, rather than arresting the actual wrongdoers. Numerous states enacted laws requiring children to salute the flag and scores of Jehovah’s Witness schoolchildren were expelled from school.
Three years later the Supreme Court did something it rarely does. In West Virginia v. Barnette, it explicitly reversed itself, holding that it is unconstitutional to compel speech inconsistent with the speaker’s religious beliefs. In another case involving Jehovah’s Witness schoolchildren and the American flag, the court said such compelled expression violates the First Amendment. The court explicitly rejected the need to coerce uniformity to achieve national unity. The Barnette court’s reasoning is worth quoting at length:
"Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of pagan unity, the Inquisition as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."
The similarities to the Masterpeice Cakeshop case are striking. When Jack Phillips said he would not bake a wedding cake for a same-sex marriage because of his religious opposition to gay marriage, the couple had no trouble finding another baker who made their cake for free — a cake that depicted the rainbow flag, the iconic symbol of gay pride.
So 75 years later the court will once again decide whether a state (this time, Colorado) can compel individual citizens to “salute” a flag over their conscientious objection, only this time the flag in question is the rainbow flag.
The “salute” in question is not literal, but the requirement to endorse and participate in a message he disagrees with is arguably even more egregious in the case of Phillips, since the state is coercing him to create the flag in question.
It is interesting to imagine Colorado trying to force a baker to make a cake depicting the American flag. If a baker objected because he could not in good conscience endorse the American flag because of his support of the Black Lives Matter movement, many progressives would be quick to defend the baker’s right to decline the commission. And if the objection to baking the American flag cake was based upon religious conscience similar to that of the Gobitis or Barnette children, most conservatives would be quick to defend that baker’s rights of conscience, citing the Barnette case for support. The obvious answer is that, like Phillips, these hypothetical bakers, too, should be protected against being forced to engage in compelled speech that violates their conscience, whether that conscience is based on religion or not, and whether their objection comes from the right or left end of the political spectrum.
In this case, the offended couple argues the cake is not really a matter of expression. Rather, they maintain, it is simply a matter of providing goods in a nondiscriminatory fashion. After all, Phillips declined their business before they told him what they wanted the cake to look like. But the best evidence of the cake they wanted was the cake they got, a rainbow flag cake.
Phillips asserts that he is not discriminating against these customers based on their sexual orientation (the record stipulates that he is willing to serve same-sex customers). He agrees to provide off-the-shelf products to all customers, gay or straight. Rather, he objects to being forced by the state to participate in expressing a message with which he disagrees. In a way, his refusal to accept a commission to make a custom wedding cake is a form of protest against the equivalence of heterosexual and same-sex marriage.
The argument that a flag does not involve expression is a sure loser. The court has previously protected the right of protesters to burn the American flag, so it is hard to see how they could justify forcing Phillips to create a flag of a different color. It also makes untenable Colorado’s argument, together with the aggrieved couple, that the cake is just a product and does not involve speech, or does so only incidentally.
Here in Utah recently, a group protesting the LDS Church’s joining a legal brief defending the baker held what it billed as “the gayest bake sale ever,” a fundraiser selling cupcakes to protest the church’s position. Ironically, their using cupcakes to express a political and moral message undermines the argument they must defend, that a cake is just a cake and doesn’t mean anything. If cupcakes can communicate a message of protest, then the decision not to bake a cake can also communicate a message of protest.
In drawing the line between protected expression and unprotected conduct, the court might consider analogous cases of discrimination that involve a religious minority. After all, the Colorado statute also prohibits discrimination on the basis of religion. Imagine a Mormon mother asking Jack Phillips, or some other cake artist, to bake a cake depicting the Angel Moroni for her 8-year-old’s baptism. Imagine that baker objecting by saying, “I don’t do Mormon baptisms.” This would be almost an exact analogue of the case of Charlie Craig and David Mullins. The mother, quite reasonably, might feel discriminated against on the basis of religion, and might feel as Craig and Mullins describe themselves as feeling, that “what should have been a happy occasion became a humiliating one.”
We might even agree as a matter of personal belief that the baker was wrong to refuse his services — whether in the case of Craig and Mullins, or in the hypothetical case of the Mormon mom, or both. But we should not want to live in a world where the First Amendment fails to protect people, including small business owners, from being forced to express messages with which they disagree. The argument that the Angel Moroni cake does not communicate a message is no more persuasive than the argument that a rainbow flag cake does not communicate a message.
In drawing the line between impermissible discrimination and protected speech, the court should focus on the fact that this cake was a custom order, that the item in question clearly communicates an ideological message, and that there was an artistic or creative dimension to the work. This would prevent businesses from refusing to serve sexual or religious minorities on the basis of their status. Protecting conscience does not compel a slippery slope where it becomes a license to discriminate.
One of the costs of living in a pluralistic society is that we must be willing to protect the consciences of people with whom we disagree — be they Jehovah’s Witnesses who do not want to salute the U.S. flag, Christian bakers who do not want to create a rainbow cake, or someone who does not want to create an Angel Moroni cake.
We should not force others to salute our flags — whether the flag in question is the Stars and Stripes or the rainbow symbol of gay pride.
Brett G. Scharffs is Rex E. Lee Chair and Professor of Law at the J. Reuben Clark Law School, Brigham Young University, and director of the International Center for Law and Religion Studies at BYU. He joined other law and religion scholars in submitting an amicus brief to the Supreme Court in support of Jack Phillips.