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The Cake That Threatens Our Fundamental Rights

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Gay wedding cake topper

One cake will soon determine whether the government can force people to engage in speech that violates their personal beliefs and fundamental religious principles.

In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the U.S. Supreme Court will decide whether my new home state of Colorado had the right to impose steep and punitive fines on a private business that refused on grounds of deeply held religious convictions to prepare a wedding cake for a wedding of two men.

Let me start by saying that I am a longtime supporter of marriage equality for homosexuals. In fact, I was an outspoken advocate on this subject for many years prior to the 2015 U.S. Supreme Court decision of Obergefell v. Hodges that recognized that gay couples have marriage rights equal to those of heterosexual couples under the Equal Protection Clause of the Fourteenth Amendment. You can read my 2013 Bearing Drift column in support of marriage equality here. Although my view is and always has been in the minority within the conservative movement and the Republican Party, I continue to believe this case was correctly decided.

That said, no one, gay or straight, black or white, Muslim, Jew, or Christian, has the right to force another person to engage in expression that violates their personal or religious convictions.

The Masterpiece Cakeshop case is not about gay rights. It is about our sacred and sacrosanct rights to free expression and religious liberty.

In 2012, a gay couple from Massachusetts ordered a wedding cake from a shop located less than 40 miles from my new home in Colorado. The owner of this shop declined the order on the grounds that gay marriage violates his deeply-held religious beliefs as a Christian. The (out-of-state) gay couple responded by filing a complaint with the Colorado Civil Rights Commission, which ruled in their favor and imposed punitive fines on the shop. The shop owner appealed to the Colorado state courts but lost at every turn there as well. The commission and the state courts held that the shop’s refusal to make this cake amounted to discrimination on the basis of the customers’ sexual orientation.

These rulings were clearly erroneous and, in fact, absurd. (In fact, in 2012, the State of Colorado did not recognize gay marriages. So, the state government was guilty of the exact same conduct as the bakery it was punishing.)

The shop owner stated unequivocally that he does not discriminate against gay customers and serves them regularly in the course of his business. He said he would have been happy to prepare any other kind of product that these customers wanted.

To be clear, this shop owner never refused to serve this couple. He refused to prepare one specific item that is a symbol of a ceremony and institution with which he disagrees and that violates his religious principles.

To illustrate this point, imagine that the customer actually was a heterosexual person who wished to order the cake as a surprise gift to a gay friend. In this hypothetical situation, the customer would not be a gay person, yet the shop still would refuse to prepare this order.

Now imagine that a gay man asked the shop to prepare a birthday cake for his partner. The shop owner has been clear that he would happily prepare that order for that customer.

So, it is beyond dispute that this is not a case in which a shop refused service on the basis of the customer’s personal identity or membership in a protected class of people. The shop owner’s objection was not to the customer. His objection was to the expression that the customer was asking him to assist in making by designing a wedding cake for a gay wedding.

A wedding cake is, by definition, a symbol and an expression of all of the ideas and sentiments related to a wedding. So, a wedding cake for a gay wedding is a symbol and an expression of all of the ideas and sentiments related to that particular gay wedding, including an acceptance of the fact that the couple getting married are of the same sex.

As I discussed above, I personally disagree with this shop owner’s beliefs against gay marriage. But that’s beside the point. The Constitution of the United States prohibits the government from forcing a citizen to engage in speech with which he disagrees, particularly when that speech violates his religious values.

Imagine a black radical asking a t-shirt shop owned by a retired police officer to make shirts for him that say “The only good cop is a dead cop.” If the shop owner refused, should he be subjected to punitive fines on the basis that the customer was black, even if that shop owner regularly serves black customers?

Imagine a radical Christian asking a Muslim-owned billboard company to prepare a billboard that reads “Mohammed was a child molester.” Does that Christian have the right to force that Muslim to malign his own religion under threat of punishment from the government?

Imagine a skinhead requesting a Jewish-owned production company to produce a television commercial praising Adolf Hitler and the Nazis. Would anyone argue that the Jewish shop owner is required by law to produce this commercial and should be subjected to punitive fines if he refuses?

Before my leftist detractors make their usual specious attempts to distract attention from my main argument, I am not equating homosexuals with Nazis or radical blacks and Christians. My history of supporting gay rights should dispel any such ridiculous accusation. What I’m doing is using extreme examples to illustrate the point that the issue in Masterpiece Cakeshop is not discrimination against homosexual people. Again, this shop owner does serve homosexuals and would have been happy to serve these particular gay customers with any other product offered by his shop. The issue is that the government demanded that this shop owner participate in expression of ideas with which he disagrees and that violate his religious principles. No one, whether a private citizen or the government, has the right to force another American to promote ideas with which he disagrees or that violate his religious principles.

This particular case involves one cake. In the grand scheme of things, that one particular cake is only significant to a small handful of people (who probably intended from the beginning to use it to punish this Christian shop owner and make an example of him). But the principle at issue, that every American has a sacred right to express – or not express – whatever views he wishes and that this right cannot be infringed on the basis of identity politics, goes to the core of our country’s sacred guarantees of our fundamental and essential rights and liberties.

If the Supreme Court rules against this shop owner, the fundamental rights of every American will be severely infringed and endangered. That’s why the Trump administration has appeared in this case on the side of the shop owner. And that’s why appointments to the Supreme Court are so vitally important.

Fortunately, as a result of the last election, the Supreme Court is likely to come down in support of our rights. But we must remain eternally vigilant.

 

Ken Falkenstein

Author: Ken Falkenstein

Ken Falkenstein is the Managing Editor of Committed Conservative and brings a wealth of experience and expertise in public affairs to the job. Ken served in the U.S. Army in the last years of the Cold War as a Russian linguist for military intelligence and the NSA. After leaving the Army, he earned his degree in Secondary Education from Old Dominion University, where he also wrote a popular column in the student newspaper.

Upon graduation, Ken worked as a Legislative Aide to two Republican members of the Virginia House of Delegates. Ken also served as Corresponding Secretary of the Young Republican Federation of Virginia, managed several successful political campaigns, and managed governmental affairs operations for a local Realtor association.

In 1995, Ken moved to Washington, DC to serve as a Legislative Assistant to Sen. John Warner (R-VA). While working for Sen. Warner, Ken attended law school at night, earning his J.D. with honors from the George Mason University School of Law (n/k/a The Antonin Scalia Law School). Since that time, Ken has practiced as a civil litigation attorney, including serving for three years as an Associate City Attorney for the City of Virginia Beach, Virginia.

Ken previously was a contributor to the highly-regarded political blog Bearing Drift and was a weekly co-host of The Steve Batton Radio Program. In 2016, Ken ran unsuccessfully for the Virginia Beach School Board. Ken is also a former President of the Down Syndrome Association of Hampton Roads.

Ken now lives outside of Denver, Colorado with his wife, Kim, and three sons, Adam, Dylan, and Joshua, who has Down syndrome. Ken’s writing is motivated and informed primarily by his concern for his kids’ future.

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