A Cake, the Supreme Court and Fundamental Rights

In 2017, the U.S. Supreme Court will consider the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.* Baker Jack Phillips is appealing a Colorado Court of Appeals’ decision based on the Colorado Anti-Discrimination Act, condemning him for refusing to bake a personalized wedding cake for a gay couple because of Phillips’ Christian faith. It is yet another case of conscientious objection. In defending his refusal to bake the cake, Philips claimed that he offered standard cakes and referred the couple to other bakers, offers that were not accepted.

David Mullins and Charlie Craig filed the case with the Colorado Civil Rights Commission, which upheld the couple’s complaint, and determined that the bakery should no longer refuse to serve same-sex couples, that it should instruct its employees to serve same-sex couples, and should submit quarterly reports proving that it was adhering to the decision. A state court subsequently upheld the commission’s ruling. The particular law at issue forbids Colorado businesses from discriminating against clients based on sexual orientation and other grounds.

The appellate decision indirectly illustrates the grim and radical secularism (which, by the way, is also strong in Brazil) that advocates the extirpation of all religions from public spaces. In this case it seems that faith should, in Maoist style, be rooted out even from the baker’s private life, because it was literally and directly determined that Phillips do so.

Unlike laicism (or radical secularism) laicity implies that, while religion should not be part of the state structure, the state is obliged not to interfere in matters of religion, faith and conscience.** The appeal is based mostly on the First Amendment, which, since 1791, prohibits Congress, the courts, etc., from establishing a religion and forbidding its free exercise, or abridging freedom of expression.***

Thus, in this case, fundamental principles are on a collision course: on one hand, artistic freedom − the refusal to bake a personalized cake − together with the baker’s inviolable freedom of belief and conscience; on the other hand, the no less important right to equality and protection against sexual discrimination.

With all due respect to the involved parties, we understand that the same freedom the couple has to choose another establishment of their liking and hire the artistic service that expresses their sexual choice after Phillips’ refusal should also protect the baker, who should be free to provide or not provide his service to whomever he chooses and in a manner allowed by his Christian conscience. Moreover, in spite of being open to the public, the bakery is not a state establishment. Thus, in our view, the Colorado Anti-Discrimination Act must be revised. The act’s kind of norm violates a citizen’s belief and conscience. Pitifully, however, the current social trend − even in the United States, where Christian faith is part of the nation’s roots − is to discriminate against and criminalize religion.

The U.S. Supreme Court consists of five conservative justices and four progressive justices, which, in theory, gives a small advantage to the baker. And, last Thursday (Sept. 7, 2017), the U.S. Department of Justice came out in favor of the baker, saying that a person cannot be forced to use his or her talent for something in which he or she does not believe. It remains to be seen.

*Editor’s note: The case of Masterpiece Cakeshop v. Colorado Civil Rights Commission was argued before the U.S. Supreme Court on Dec. 5, 2017, and a decision is expected to be rendered in several months. Although this commentary was published in September prior to the high court arguments, the editors feel its perspective remains relevant.

**Translator’s note: For purposes of clarification, this is a word play, and the author’s underlying message here appears to be that laicism as an ideology is a corrupt, ideological and irrational version of practice by those in the laity, or the laicity.

***The First Amendment of the U.S. Constitution provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …”

Acyr de Gerone is a lawyer, vice-president of the Commission on Law and Religious Liberty of the OAB/PR (The Bar in the Brazilian state of Paraná), and representative of the Anajure in Paraná.