David French tries to set the record straight on Masterpiece Cakes, scheduled for argument in the Supreme Court Tuesday.
Forgive me for starting a piece with the oldest cliché in the practice of law. As the saying goes, “If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither are on your side, pound on the table.” In the run-up to the oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission on December 5, we’re seeing a lot of table-pounding from the Left. In fact, I’ve never seen a case more mischaracterized in my entire legal career.
The actual facts of the case are crystal clear. Jack Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to help celebrate a gay wedding. As a Christian, he finds same-sex unions to be unbiblical and immoral, and he wasn’t willing to use his artistic talents to advance a message he holds to be wrong. In fact, he’d frequently declined to design cakes that advanced messages he found to be offensive. But he never, ever — not once — discriminated against any customers on the basis of their identity. He baked cakes for people of all races, creeds, colors, and sexual orientations.
Two years ago, in the Obergefell opinion, [Justice Anthony Kennedy] wrote this:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
If Justice Kennedy holds to this view, then not only does the First Amendment win, nondiscrimination laws won’t lose. Phillips isn’t discriminating on the basis of sexual orientation. If Kennedy changes his mind, then he’ll erode vital American constitutional traditions and doctrines. The sexual revolution, not the Constitution, will be the supreme law of the land.
That old cliché explains why it will be hard to set the record straight. Neither the law nor the facts favor what Colorado has done to Jack Phillips, the proprietor. Only the inexorable demand of the sexual revolution to eradicate all wrongthought and wrongthinkers supports it.
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“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)
There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)