I Cook for the Public: On Same-Sex Wedding Cakes, a Colorado Baker, and the Supreme Court
David Brooks opines in the New York Times, December 4, 2017, about the Supreme Court Case being argued this week involving a Colorado baker (Jack Phillips) who refused to bake a wedding cake for Charlie Craig and David Mullins, a same-sex couple planning to marry. Brooks, along with many others are trying to frame this as a freedom of expression case, a First Amendment protection. I disagree.
I see this situation as closely analogous to refusing to serve someone in a restaurant because of his/her race or religion. Cooking, as much as baking, is surely an art, but when you hang out your shingle and say "I cook for the public," you don't get to say "unless you're gay, or black, or Jewish, in which case I won't cook anything for you." If you have something on the menu, but refuse to serve it to members of the public due to your racism, or your religious bigotry, you forfeit the right to do business with the public and your operating license should be revoked. It is the same with refusing to serve people based solely on sexual orientation.
If Phillips will not make the cake, one that is on the menu (i.e., one that he would ordinarily make), for the reason given, he should lose his license. No one is asking him to put his heart and soul into this act of baking any more than any other he performs many times a day. I think if he was asked for a special kind of decoration that is not on his usual list, he could say "no, that's not on the list, sorry." But refusing to bake the cake itself is not an option. He is not being "forced" to do anything he doesn't do every day, in this situation. Rather, he is being asked whether he serves the public. His freely given answer is "no, I pick and choose." Hence, no license for him.
If he had informed the city of Lakewood of his intent to discriminate upon application for a license, I believe it would have been denied, and justly so. Thus, he also represented himself falsely to the city in applying for the needed licenses. That is also formal grounds for revocation. If he wants to be a private baker, choosing his clients one by one, operating in such a way as to require no license or other public endorsement, that is a different story. But the baker is the one who decided to make this an issue, not the couple. He simply said to them "I discriminate against you. Accept that or report me."
I don't think this court is likely to see it my way, but it is not about whether baking is expression or speech. It's about what it means to hold a general business license. I agree with Brooks that the legal system makes a mess of this kind of problem. But, as he says, this is America. If Brown didn't sue the Board of Education in Topeka, how would we have found the political will to end school discrimination? Sometimes it takes a lawsuit, messy as it is.