Gay Cakes Are Not a Constitutional Right

Written by Daniel John Sobieski

One wonders what would have happened if the Sweet Cakes by Melissa case involved not the owners refusing to be coerced to violate their religious conscience by providing a cake not to two same-sex people celebrating their union and calling it a marriage, but rather a Muslim bakery being forced to bake a cake decorated with a cartoon picture of the prophet Muhammad covered with bacon sprinkles.

Would the bakery in that scenario be forced to pay a heavy business-killing fine for actually believing that the Founding Fathers meant freedom of religion when they enshrined it in the First Amendment?  Probably not, even if the ruling was made by a liberal Oregon judge who forget that this country was founded by people fleeing religious persecution and governmental war on their religious conscience:

The Oregon Court of Appeals has ruled against Aaron and Melissa Klein, owners of the Sweet Cakes by Melissa bakery who in 2013 refused to design and bake a cake celebrating a lesbian couple’s same-sex wedding [sic].

The Kleins felt that designing and making the cake to celebrate the 2013 same-sex wedding [sic] would violate their Christian faith.

On Thursday, however, the appeals court upheld the decision by the Oregon Bureau of Labor and Industries to fine the Kleins $135,000.  The hefty financial penalty ultimately forced the couple to close their bakery[.] …

“Freedom of expression for ourselves should require freedom of expression for others.  Today, the Oregon Court of Appeals decided that Aaron and Melissa Klein are not entitled to the Constitution’s promises of religious liberty and free speech,” First Liberty CEO Kelly Shackelford stated.

Creative expression in any form is free speech, which, along with freedom of religion, is supposedly protected in the First Amendment.  People should not be compelled to write or say things they do not believe or agree with, whether it be in the form of ink on paper or frosting on wedding cakes.

The Supreme Court has heard oral arguments in a similar case, Masterpiece Cake Shop v. Colorado Civil Rights Commission, in which the shop refused to make a cake for a same-sex couple to celebrate their ceremony, saying it would be an endorsement that would violate their religious beliefs.  The Colorado courts thought otherwise:

It started over five years ago with a simple request for a wedding cake.  And now, after wending its way through the system, Masterpiece Cakeshop v. Colorado Civil Rights Commission is finally having its day before the U.S. Supreme Court.

Many legal experts believe [that] it will be the most significant case of the term.  It involves a clash of our rights as citizens, as well as our ideals.

Two of the most precious rights Americans possess are freedom of expression and freedom to practice their religion as they see fit.  Both are enshrined in the First Amendment[.] …

It began in July 2012, when Charlie Craig and David Mullins asked Jack Phillips, who owned the Masterpiece Cakeshop, to create a custom wedding cake to celebrate their same-sex marriage [sic].  Phillips refused, saying he didn’t wish to promote a same-sex wedding [sic] due to his religious beliefs.

Craig and Mullins filed a complaint with the Colorado Civil Rights Commission.  The commission decided against Phillips, declaring he had discriminated on the basis of sexual orientation.

The commission ordered Masterpiece Cakeshop to change its policies, give its staff training on discrimination, and provide quarterly reports for two years on steps taken to comply with the order.

The Colorado Court of Appeals upheld the decision and the Colorado Supreme Court declined to hear the case.  Last year, Phillips petitioned the U.S. Supreme Court, claiming [that] the Colorado ruling violates the Free Speech and Free Exercise Clauses of the First Amendment.

In this case, as Jordan Lawrence writes in National Review, the line between providing a service and expressing a view is being deliberately blurred by liberals to destroy both free speech and religious liberty:

The government must not force creative businesses to create messages that they oppose.  During the Masterpiece Cakeshop oral arguments at the U.S. Supreme Court on Tuesday, the two attorneys opposing cake artist Jack Phillips argued that the justices should not protect Phillips’s freedom to abstain from creating expression he disagrees with.  Their primary argument was that, in their opinion, it is too difficult to draw lines protecting people’s First Amendment right against compelled speech, so the high court should not protect Jack’s rights[.] …

David Cole of the American Civil Liberties Union argued that the Supreme Court should conclude that anything Phillips would create under some circumstances, he must create in all contexts[.] …

[But] a cake artist who agrees to design a rainbow cake for a Noah’s Ark-themed Sunday-school party should not be forced against his will to make the same cake for a same-sex wedding [sic] (like the one that the same-sex couple who visited Masterpiece Cakeshop eventually got for their wedding [sic] reception).  Neither should a cake artist who would craft an elephant-shaped cake for a party at the zoo be forced to create the same cake for a Republican[ P]arty celebration. Nor should a cake artist who is willing to design a cake saying “I’m dreaming of a white Christmas” for a Christmas party be required to make that cake for a party hosted by Aryan Nations.

The Masterpiece Cakeshop case is different from saying a hotel or restaurant cannot refuse service to people based on their sexual orientation.  Baking is a wedding cake is a creative process, and you cannot force a baker to create something that violates his religious beliefs anymore than you can force a writer to put on paper opinions he or she vehemently disagrees with.

That the judiciary’s attempt to redefine marriage is a looming threat to religious liberty, as observed here, and may lead to an era of religious persecution not seen in since the days of the Roman Empire is seen in the chilling redefinition of the First Amendment’s guarantee of religious liberty by Sen. Tammy Baldwin, Democrat of Wisconsin and the Senate’s only lesbian.

Baldwin made her remarks on the June 27, 2015 broadcast of Up With Steve Kornacki on MSNBC.  In a transcript of her remarks posted on Newsbusters, Baldwin ignored the fact that it was religious persecution in Europe that led to people fleeing here seeking religious freedom on an individual as well as an institutional level:

Certainly the [F]irst [A]mendment says that in institutions of faith that [sic] there is absolute power to, you know, to observe deeply held religious beliefs.  But I don’t think it extends far beyond that.  We’ve seen the set of arguments play out in issues such as access to contraception.  Should it be the individual pharmacist whose religious beliefs guides [sic] whether a prescription is filled[?] [O]r in this context, they’re talking about expanding this far beyond our churches and synagogues to businesses and individuals across this country.  I think there are clear limits that have been set in other contexts and we ought to abide by those in this new context across America.

Baldwin, in arguing that there is no individual right to religious liberty and expression, misreads the Constitution with its mandate saying Congress shall pass no law prohibiting the free exercise of religion.  It is a key phrase in the First Amendment, leading off the Bill of Rights.  These are individual rights fought for in the American Revolution.  These rights are not limited to institutions; rather, they apply to all individuals, just as the Supreme Court has decided that the Second Amendment applies to individuals and not just to state-ordained militias.

Baldwin had been asked the question, “Should the bakery have to bake the cake for the gay couple getting married [sic]?  Where do you come down on that?”  She came down on the side of government coercion and the proposition that church is something you do on Sunday for an hour and otherwise shouldn’t act on your religious beliefs in your daily life.

The owners of Sweet Cakes by Melissa tried to act on their faith but were ordered to pay $135,000 to a lesbian couple based on an order from the Oregon Bureau of Labor and Industries.  As the Washington Times reported:

The order affirms an initial ruling in January that found Aaron and Melissa Klein had violated Oregon civil-rights law by refusing to bake a wedding cake for a same-sex ceremony in 2013 and ordered them to pay damages to Rachel Cryer and Laurel Bowman.

In Iran, gay “wedding” cake and pizza requests are handled a bit more harshly and with more finality than a simple statement from a business owner that his or her faith won’t allow him to cater the affair.  If two men or two women contemplating attempting a marriage had walked into a Tehran pizza shop like Memories Pizza in Walkerton, Indiana, the pizza shop that refused to cater a hypothetical event attempting to celebrate a wedding between two people of the same sex, hanging in the public square and not a simple refusal would have been a likely outcome.

Crystal O’Connor, member of the family that owns Memories Pizza, told a local ABC news affiliate that she agreed with Indiana’s version of the federal RFRA, signed into law by President Bill Clinton in 1993.  “If a gay couple came in and wanted us to provide pizzas for their wedding [sic], we would have to say no, “she told ABC 57.  Her beliefs and rights and the beliefs and rights of the owners of Sweet Cakes and Masterpiece Cakeshop should be respected

The Hobby Lobby case revolved around the belief of the owners that people should be free to act on their faith in their daily lives, which includes their business life.  It is a belief shared by many, including the Founding Fathers.  As Investor’s Business Daily observed:

So do scores of Catholic and non-Catholic institutions and businesses who argue either that the way they run their private businesses is an extension of their faith or that a church, something the federal government seeks to redefine, is not something that happens one hour a week on a Sunday[,] but 24/7 through the hospitals, schools, soup kitchens[,] and charities they may operate.  They argue that acting out their faith through their works should not be illegal.

To gay advocates, acting on your sincerely held religious beliefs is bigotry.  They ask that their lifestyles be respected as well as their newly discovered right to the benefits of marriage, found in the “penumbras and emanations” of the Constitution that also gave us the right to abortion.  Neither abortion nor marriage is mentioned specifically in the Constitution, but religious liberty and those who say acting on your faith is bigotry are physicians sorely in need of healing themselves.

Liberals’ definition of religious liberty is not very different from Lenin’s and Stalin’s. Investor’s Business Daily once quoted Cardinal George regarding Obamacare and its imposition of the contraceptive mandate on religious institutions:

“Freedom of worship was guaranteed in the Constitution of the former Soviet Union,” Chicago’s Francis Cardinal George recently wrote.

“You could go to church, if you could find one.  The church, however, could do nothing except conduct religious rites in places of worship – no schools, religious publications, health care institutions, organized charity, ministry for justice[,] and works of mercy that flow naturally from a living faith.  We fought a long Cold War to defeat that vision of society.”

One wonders what would happen, or should happen in Sen. Baldwin’s view, if a gay couple walked into a bakery owned by black Americans and asked for a Confederate flag on their wedding cake.  The irony here is that those who profess to be the most tolerant exhibit the most intolerance.  If you demand tolerance of your lifestyle, you should exhibit tolerance of other people’s religious beliefs.  Otherwise, it is you who are the hypocrite and the bigot.

Justice Anthony Kennedy may have tipped his hand in the Masterpiece Cakeshopcase, noting in comments during oral arguments:

According to the Wall Street Journal’s live blog, Kennedy wanted to know how the state tried to accommodate the baker’s rights to speech and religious expression, and he expressed his dissatisfaction with the response:

Justice Anthony Kennedy told a lawyer for the state that tolerance is essential in a free society, but it’s important for tolerance to work in both directions.  “It seems to me the state has been neither tolerant or respectful” of the baker’s views, he said.

Well said.  Indeed, the road to oppression and the end of liberty is paved with political correctness.

Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine, and the Chicago Sun-Times among other publications.

This article was originally posted at