Waldo, typing furiously in his bath, looked up.
"Just in time, my boy. I feel a good fisking coming on."
"It's been a while," I said. "There's just nobody fun around any more. What happened to The Palmetto Scoops and their gay vendettas, not to mention that bizarre campaign against public parks? Where are the Wesley Donehues, preaching how only San Francisco is cool enough to contain the likes of them without realizing all the things that make Frisco that way he opposes for the election candidates who hire him, and cause him to want to spend less and less time in South Carolina?"
Waldo looked bored. "Prolix, but more or less accurate. Now, to business."
"An op-ed in Forbes: "Persecution and the art of baking, or how civil rights became corrupt," by Steven F. Hayward, the Ronald Reagan Distinguished Visiting Professor at Pepperdine, former Weyerhaeuser Fellow at AEI, author, and-"
"Cheerful polemicist," I grinned.
Waldo lifted an eyebrow.
"We had a mutual friend once. That led to the usual graduate school late nights debates about Life and Stuff. Then our paths diverged."
"His the more Unitarian, I surmise."
This time I raised an eyebrow.
"Onward and upward."
"Ah. Yes. Mine has been distinctly lateral, with the occasional, sudden, nausea-inducing plunge. Anyway, what's with the article?"
Waldo began to read:
Deep inside today’s Supreme Court opinion in the long-awaited Hobby Lobby case that involves the conflict between religious freedom and Obamacare’s contraception mandate is the caveat that religious freedom cannot be invoked as a shield behind which to engage in illegal discrimination."So what can?" I asked. Waldo continued:
Which means that the decision, while a minor nick to Obamacare, provides little or no future guidance to the increasingly harsh clash of individual rights that is now rending the nation asunder."The nation asunder? Like The Civil War? The Civil Rights Movement? Less Filling vs. Tastes Great?" Didn't Jed Purdy just argue conflict is just what America needs? What else does he need for a shield to legitimize illegal discrimination?"
This conflict can be seen especially in the case of Jack Phillips and his Masterpiece Cakeshop in Lakewood, Colorado, and its current disposition should be sobering to all friends of a free society, not to mention a genuinely tolerant one. The conflicts between religious liberty, freedom of association, and equality that have existed in a state of simmering ambiguity for more than a century may have finally reached a breaking point."I worry when people start talking about 'all friends of a free society," I responded. "If you don't agree, you ain't one. And I'll be intrigued to see how this develops a distinction between a tolerant society and 'a genuinely tolerant one. Anyway, I just read that other religious groups are already gearing up for claiming their anti-gay discrimination passes- based on Hobby Lobby."
"It appears," Waldo drawled, "conservatives are vexed that their Supreme Court majority failed to gird their loins for renewed and legalized ostracism of the American homosexualists."
"Bad choice of cases, I'd say. After all, contraception's prolly not high on the average deviant's shopping list, eh? But what's with the baker?"
In 2012 Phillips declined to make a custom wedding cake for a gay couple, Charlie Craig and David Mullins, because of his religious views against same-sex marriage, though, it should be noted, he did not refuse to provide any other baked goods for the couple’s ceremony. Further, gay marriage was not yet legal in Colorado at that point. (Craig and Mullins were planning a Colorado celebration of their marriage in Massachusetts.)"So the Bible marks out the wedding cake as emblematic of the sanctity of marriage? What about that armadillo cake in Steel Magnolias?"
"Idiot." That was a groom's cake. And it was banished to the garage."
"Big whoop. Anyway, why are cupcakes, crullers or croissants OK for the betoqued baker to sell to the gays, and cake's not?"
"As the good professor explains, Mr. Phillips' religious scruples are intertwined with his sense of nuptial artistry. The two potential customers affronted both. And besides, their wedding wasn't even legal in Colorado."
"But if Mr. Phillips had a kid go to Massachusetts for a Provincetown wedding, wouldn't that be OK?"
"Apparently, it would depend on the plumbing of the spouse to be. I think the article's- and/or Mr. Phillips'- is that marriage equality is some exotic, noxious weed not native to the fresh air and godly lifestyles of Colorado."
"OK, so the guy's a few biases short of p.c. Besides, the Colorado marriage equality ban just got struck down, so strike that argument, bakers of Colorado.
I continued, "Couldn't the men have gotten their cake at Safeway? Or even FedEx an order from the Erotic Bakery in Seattle?"
"Perhaps the much-stereotyped Uranian fussiness, combine with artistic aspirations, led them thence," Waldo muttered. "They may have wanted to boast, 'Our cake is a Masterpiece."
Craig and Mullins brought a discrimination complaint against Phillips with the Colorado Civil Rights Commission, and the ACLU and Colorado’s attorney general piled on the bandwagon. An administrative law judge sided with Craig and Mullins against Phillips, and in late May the Colorado Civil Rights Commission further ordered that Phillips and his employees be sent to re-education camp—make that “sensitivity training”—to make sure Masterpiece Cakeshop never violates gay rights again."Piled on a bandwagon of...two guys?"
"Excellent point. After all, jumping- or, in Hayward's case, piling- on the bandwagon isn't really the right phrase to employ. Piling on a bandwagon is to join a growing movement in support of someone or something, often in an opportunistic way, when that movement is seen to have become successful already, and without the pilers' aid. In this instance, the ACLU got involved by offering to represent the two men in their complaint. It's what the ACLU does," he said. "The Attorney General's Office got involved because it represents state agencies; in this case assistants from the Business and Licensing Division and the Civil Litigation & Employment Section were involved, because the AG had to bring the case for the Civil Rights Commission.
"You might think Phillips was left all to his own devices- it would fit the persecution theme nicely- but you'd be wrong. This story was published in January:
A conservative Christian organization is appealing a ruling against a suburban Denver baker who refused to make a wedding cake for a same-sex ceremony.
Alliance Defending Freedom filed an appeal Monday on behalf of Masterpiece Cakeshop. A judge last month ordered the shop to stop discriminating against gay couples.
The American Civil Liberties Union had filed a complaint against shop owner Jack Phillips on behalf of Charlie Craig and David Mullins, who were married in Massachusetts and wanted a wedding cake to celebrate in Colorado."The Alliance makes a lot of their role in the case," Waldo told me. He waved a thick sheaf of paper. "These are their pleadings. They, like the ACLU's for the couple, tell so much more than the Forbes piece does."
"Now, now," I replied, "Forbes wasn't looking for a law review article from the prof. He only had so many words."
"True. My point is simply this: there were well-made arguments on both sides of the case. The Forbes piece could have made its case much better relying on what actually happened than it does stringing together pre-digested bits of snark and broad generalizations. Take, for example, the author's recent piece titled "Conservatives & higher ed" in The New Criterion. Much more thoughtful without sacrificing any of the brio that is his trademark.
"What made their intervention 'not' a piling-on act," I wondered. And what about that sensitivity training in a re-education camp? Does Colorado run those?"
"No. You'd have thought Professor Hayward would know that. He was once the Inaugural Visiting Scholar in Conservative Thought and Policy at the University of Colorado at Boulder."
"Are there private ones?"
"Not that my research has turned up, under public or private sponsorship. And Phillips has said nothing about taking his staff to camp, just that he might have to 'retrain them. And he hasn't ruled out complying with the Commission's order, either."
"We are talking the rehabilitation-though-forced-labor-and general-long-haranguing in the North Vietnam, Mao's China modes, yes?"
"The very thing. It's what comes of crossing French rationalism with Marxism."
"Did they have to fly to Seattle and learn to make penis cakes? Is that what makes one sensitive to same-sex nuptiality? How long does this re-education take?"
"That's not clear from the news accounts," Waldo conceded. "But it's a small point when you consider the larger one- that the Forbes piece is just making things up. At best, it indulges a penchant for snarky wink-wink, nudge-nudge innuendos in lieu of analysis."
"Cheerful polemicism," I chirped. "Or, to be fair, maybe he was in a hurry."
"In any event, Waldo continued,"there was an attempt to mediate a settlement at the beginning of the case. It failed because Phillips declined to stop discriminating. The couple said that was all they hoped for- that subsequent cake buyers who got referred to his shop wouldn't have the same experience they did.
Waldo pulled some paper out of a folder. "What the Colorado Civil Rights Commission ordered was this:
'The Respondents shall take remedial measures to ensure compliance with the Public Accommodation Section of the Colorado Anti-Discrimination Act, Sec. 24-24-601(2) including, but not limited to, comprehensive staff training on the Public Accommodations section of the Colorado Anti-Discrimination Act and changes to any and all company policies to comply with sec. 24-34-601(2) of C.R. S. and this order.
'The Respondent shall provide quarterly compliance reports to the Colorado Civil Rights Division for two years from the date of this order. The compliance reports shall contain a statement describing the remedial measures taken.'""So it doesn't tell them to go to the Kim Jong-Un Staff Offsite Center to harvest turnips for a season, or even tell them what to do except learn to obey a law?"
"Not exactly a festive weekend with Pol Pot, is it?" Waldo smiled drily. "More likely the professor is indulging a right-wing meme, turning a wacky comment by one person against everyone who might think anything remotely similar. Or not. He has used it in the past, harking back to comments attributed to an environmental activist at the Earth Summit in 1992. She called for the re-education of economists."
"Well, she was talking about economists..." I joked. "Shaw said-"
"If all the economists were laid end to end they still wouldn't reach a conclusion."
"Right." I smiled. Of course, I like the Dorothy Parker version better."
Waldo cleared his throat.
"In 2010 he used it as a punch line on a panel:
The year before that at the Rio Earth Summit, Hazel Henderson, a fairly famous activist of her time, said, come the eco-revolution we’re going to round up economists and send them to re-education camps. [Laughter]. I think, by the way, environmentalists have sort of gotten over that to some extent. My observation is, very few mainstream environmentalists, or whatever term you want to use, would say that kind of thing today."And here we are, four years later, and he's still using the sort of offhand comment he said back then that respectable sorts have long since given up. And he's not alone," Waldo continued. The week before the Forbes piece reached the Internet, the former Senator, Rick Santorum, said this to an American Family Association radio show host:
Former Sen. Rick Santorum (R-Pa.) claimed during a radio interview this week that anti-gay marriage business owners are being sent to “re-education camps” for refusing to serve gay customers.
“You now see situations with bakers and florists and photographers who are being forced to provide services for same-sex weddings or get fined, lose their business,” Santorum said during the appearance on the American Family Association’s “Focal Point” radio program on Monday. “In the case of Colorado, there was a Colorado case recently where someone had to go to a re-education camp if you will. And the amazing thing is that in Colorado gay marriage isn’t even legal!"
Santorum appeared on the program in order to promote his new movie on the persecution of Christians in America.
The Colorado Civil Rights Commission ruled in May that Christian baker Jack Phillips' refusal in 2012 to make a wedding cake for a same-sex couple on religious grounds violated the state's anti-discrimination laws.
The panel also ordered Phillips to submit quarterly reports for two years, outlining how he implemented new business policies, including anti-discrimination training for the staff.
“They are fighting, they are fighting, they are not backing away, they are coming at us,” Santorum, a potential 2016 Republican presidential candidate, added in the interview. He also urged conservatives to emulate the relentlessness of “liberal lawyer organizations” fighting for LGBT rights."Sounds like they shop at the same talking points store," I said.
"You might think that. I couldn't possibly comment," Waldo replied, looking for a moment like the malevolent Francis Urquhart in House of Cards.
I started thinking it was time to break the Fourth Wall, so I turned and asked, "Don't you think this piece is being burdened by exposition?"
"Patience, young man," Waldo chided. "I'm coming to the action. Or, rather, the professor is:
This case appears to be another in a long line of contrived cases (there’s a very similar case unfolding in the same way in Oregon-"Contrived, indeed," Waldo snorted. "His link is to a Fox News opinion piece. Consider this:
An alternative weekly paper in Oregon conducted an experiment at Sweet Cakes By Melissa, a Gresham, Ore. bakery whose owner Aaron Klein cited religious principles in his refusal to bake a cake for a lesbian couple's wedding. When a Willamette Week reporter requested cakes for a "pagan solstice party," as well as a divorce party and a party for a woman who'd had multiple children out of wedlock, a Sweet Cakes employee reportedly agreed to take the orders.
-along (he resumed reading the Forbes piece) with the New Mexico case involving a photographer who refused to shoot a gay wedding ceremony), stretching back at least to Plessy v. Ferguson in 1897, intended to expand the reach of civil rights law."Is the prof really arguing that ending 'separate but equal' was 'contrived?'" And isn't the Cake Nazi thing spreading? I just read about a Northern Ireland baker refusing to rise to the occasion."
"I suppose he'd have to answer that one," Waldo drawled. "Then one would have to ask the Forbes fact-checkers how they were off a year on the date the case was decided. But back to the article."
How did Craig and Mullins come to select this particular Colorado bakery for a wedding cake, and are there not other bakeries that would gladly supply them with a wedding cake? It is not as though the baking trade is a narrow, uncompetitive oligopoly or a government-sanctioned monopoly like public transportation. Why would you want to buy a cake (or any custom product) from someone who doesn’t want to make it for you?"Leaving aside the off-point comments about public transit, what we can see here is that, as is often the case when you don't do your homework," Waldo observed, "the real answer to a question may diverge from the alternate reality you seek. Charlie Craig's mother wrote an article about the visit to the cake shop, and wrote this about it."
In July of 2012 my son and his fiance invited me to join them at a bakery for a cake tasting and to discuss a design that was recommended by their event planner."And that's how they chose the place. An AP story filled in a few details:
The Lakewood restaurant hosting the reception suggested they get their cake at Masterpiece. They took Craig's mother, visiting from Wyoming, to the shop to help pick a cake. "We wanted this just to be about us," Mullins said."The one detail that might have been most interesting to Forbes editors (do they fact-check, I wonder?) is that the men clearly had no way of knowing the baker's views when they walked in. He didn't tell them, and I've been unable to find any mentions or evidence
that he keeps a sign at the entrance warning off randy, wedding-celebrating homosexuals, or a greeter to ask them, something along the lines of, 'Good day, gentlemen, are you, by chance, seeking a religiously impermissible confection today?' AP says the meeting went this way:
The encounter at Jack Phillips' Masterpiece Cakeshop lasted less than a minute.
Phillips stepped out from behind the counter in his small, pastry-crammed shop to meet customers Charlie Craig and Dave Mullins. They told him they wanted a cake to celebrate their own marriage.
Phillips replied he couldn't, but that he'd be glad to make one for other occasions, such as birthdays. Left unsaid was how making a gay wedding cake would violate his Christian faith, how he does not make ones for Halloween or bachelor parties, either.
Craig and Mullins left the shop, stunned. Left unsaid was how they viewed themselves as a regular couple, their wedding a private celebration, not a political statement. They simply wanted a no-frills cake...
For weddings, he interviews the couple to find out how they met, their mutual interests, what color dresses the bridesmaids will wear.
"When I decorate a cake, I feel like I'm part of the party," said Phillips, who had refused previous orders for cakes for gay weddings.
Phillips said he once employed a gay man in his bakery and makes regular birthday cakes for a lesbian couple. His youngest daughter, Lisa Eldfrick, 34, said Phillips never had problems with her and her siblings' various gay friends.Professor Hayward goes on to ask:
I wonder how Craig and Phillips might fare if they’d requested a wedding cake from a Muslim-owned bakery, or whether the Colorado Civil Rights Commission would have required Muslims to attend “sensitivity training” re-education camps. Today’s multicultural orthodoxy suggests the obvious answer."However divorced from the facts of the case that answer may be," I added. "And there he goes with the re-education camps again. You'd think Forbes would add a link to them so readers could see if they look like good investment opportunities."
"There's an article in The Guardian by a female Muslim Republican," I told Waldo. "Ask her."
"I looked up an article Hayward did link to," Waldo told me. "It's interesting that, instead of looking at the Commission's actual order- which is online- he relies on a report by an ABC TV network affiliate's story. It said this:
Jack Phillips and his attorney called the ruling unfair.
“When a recently enacted state statute collides with the First Amendment, the First Amendment should win every time,” said Nicolle Martin. “A human rights tribunal has no authority to trump the United States Constitution.”
Phillips claims he didn’t turn the gay couple away.
“I clearly told them that I would make them birthday cakes, shower cakes, cookies and brownies,” he said. “I just don’t do cakes for same sex weddings.”"Seems like refusing a customer's business is turning them away," I said. "And I notice not even the source the author relied on says anything about re-education camps."
A little research would have found the actual content of the decision," Waldo responded. It, for example, finds as a fact that the day after Phillips refused the customer, Charlie Craig's mother called him back; "Mr. Phillips advised Ms. Munn he does not create cakes for same-sex weddings because of his religious beliefs, and because Colorado does not recognize same-sex marriages."
"The findings go on to detail Mr. Phillips' explanation of his precise religious grounds, with Biblical citations. And it notes, "Philips believes that if he uses his artistic talents to participate in same-sex weddings by creating a wedding cake, he will be displeasing God and acting contrary to the teachings of the Bible."
"Of course," Waldo commented, "What makes that interesting is that Mr. Phillips says one thing when he's being persecuted, and another when he's dealing with other customers:
Stephanie Schmalz and her partner, Jeanine, wanted to order some cupcakes to celebrate their commitment ceremony. They contacted Masterpiece Cake Shop in Lakewood, Colorado, but the store refused to take their order, informing the couple that they have a strict policy against selling cakes for same-sex weddings and ceremonies.
Then Stephanie tried a little experiment. She called the bakery and told the owner, Jack Phillips, that she was planning to host a wedding celebration for two dogs. She told him that the dog wedding cake would need to feed 20 people and should be decorated with the names "Roscoe" and "Buffy." Without hesitation, Phillips quoted her a price and asked how soon she needed it.
When another couple tried to place an order with Phillips, he told them he would not provide a cake for same-sex weddings, the same way he would not provide cakes for pedophiles."Hmm...same thing the Oregon bakery did, eh?"
"It would appear so. And in the Colorado Civil rights Commission Commission pleadings, there was a citation to the case record in which "Phillips admits that he and masterpiece have turned away other same-sex couples for the same reason. CRAIG 0005."
Maybe they should have ordered online," I joked. "Remember that cartoon?"
"Inapt," Waldo snapped. "Had the two men been dogs, Mr. Phillips would have offered them a sample plate." He read on.
Phillips has also argued that he would "also refuse to provide a cake to a same-sex couple for a commitment ceremony or a civil union, either of which is forbidden by Colorado law. Because Respondents' objection goes beyond just the act of "marriage" an extends to any union of a same-sex couple, it is apparent that Respondents' real objection is to the couple's sexual orientation and not simply their marriage. If course, nothing in sec. 24-34-601(2) compels Respondents to recognize the legality of a same-sex wedding or to endorse such weddings. The law simply requires that Respondents and other actors in their marketplace serve same-sex couples in exactly the same way they would serve heterosexual ones....The undisputed evidence is that Phillips categorically refused to prepare a case for Complainants' same-sex wedding before there was any discussion about what they cake would look like. Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that would be reasonably understood as advocating same-sex marriage. For all Phillips knew, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding...Waldo looked up from his reading. "Then there's an interesting footnote:
Respondents point out that the cake Complainants ultimately obtained from another bakery had a filling with rainbow colors. However, even if that fact could reasonably be interpreted as the baker's expression of support for gay marriage, with [the Administrative Law Judge doubts], the fact remains that Phillips categorically refused to bake a cake for Complainants without any idea of what Complainants wanted that cake to look like."All of which is interesting,"Waldo said, "given Professor Hayward's parade of horribles:
A few simple hypotheticals show the irresolvable legal and political thicket we are creating. What if Mr. Phillips agreed to bake the cake for the gay couple, but insisted on including a statement, made out in frosting, about his religious objection to homosexuality? Wouldn’t prohibiting him from doing so infringe his right to free expression? Would a Jewish or African-American bake shop be required to supply a cake to a White supremacist group? Actually, a KKK chapter in Georgia won a complaint against a bakery last year."Maybe Phillips should take Hayward up on the cake-branding idea," I remarked.
"Or the Forbes editors should have sent the whole piece back for a re-think," Waldo replied. "Here's the next sentence."
(Correction: This story appears to be an Onion-like hoax, though it was widely picked up and spread elsewhere by other news sites. Like all good satire, who doubts that it could come to pass?)"Now that's what I call research!" I cried.
"But speaking of shopping at the same talking points store," Waldo continued, "it turns out Richard Land, a pillar of the Southern Baptists, gets his green stamps at the same store as Professor Hayward:
This would be like going to a bakery owned by an African-American, and saying, ‘By the way, you have to bake a cake for a KKK induction ceremony, under penalty of law.’""See!?!" I crowed. "Like all good satire, who doubts that it could come to pass?"
"As it happens," Waldo added, "the Civil Rights Commission decision considered this sort of nonsense:
Finally, Respondents argue that if they are compelled to make a cake for a same-sex wedding, then a black baker could not refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation, and an Islamic bake would not refuse to make a cake denigrating the Koran for Westboro Baptist Church-""What if Westboro asked for a 'God Hates Fags' cake?" I wondered.
"Close call, perhaps," Waldo said. "But the Commission found-
However, neither of the fanciful hypothetical situations proves Respondents' point. In both cases, it is the explicit, unmistakable, offensive message that the bakers are asked to put on the cake that gives rise to the bakers' free speech right to refuse. That, however, is not the case here, where Respondents refused to bake any cake for Complainants regardless of what was written on it or what it looked like. Respondents have no free speech right to refuse because they were only asked to bake a cake, not make a speech.Waldo continued. "Perhaps Professor Hayward is writing with a libertarian bent in mind:
The legacy of slavery and race-based discrimination has led us to make compromises that limit the scope of some fundamental freedoms. The Supreme Court ruled way back during Reconstruction that property ceases to be wholly private when it is used in certain kinds of commerce, especially public conveyances such as transportation, hotels, and restaurants—though restaurants are still allowed to discriminate against the shirtless, the shoeless, and the smelly, showing that we haven’t lost our ability to make any rational discriminations about “discrimination.”"I remember Rand Paul tried that argument with Rachel Maddow- that buses should be required to carry blacks to the restaurant that should have the right to refuse them service," I joked. "He hasn't been back."
"Of course," Waldo added, "one of the things that makes the homosexuals so annoying is that they are much harder to spot and exercise one's freedom against."
"What to do, what to do," I sighed.
"Professor Hayward has ideas," Waldo remarked.
Beyond the facts of this particular legal case, or alternate market-oriented remedies such as an organized boycott of Masterpiece Bakeshop or rival gay-friendly bakeries who see a business opportunity..."Which is what seems to have happened," Waldo told me, pulling out another sheet. "The fuss has been good for all sides, it seems:"