First Liberty Institute has filed its appeal brief on behalf of Sweet Cakes in the case that imposed a $135,000.00 judgment against that small business when its owners declined to use their creative and expressive skills to prepare a cake celebrating a same sex civil commitment ceremony in Oregon.
Oh, yeah, I know that there are issues that you think are important, and you may not think this is one.
Having spent over a quarter century defending First Amendment rights, I disagree. If you disagree, it is likely either that you (a) hold special sympathies for those seeking recognition of same sex unions/marriages, (b) hold special antipathies toward claims in the Xian community about the "war on Christians," and/or (c) hold the view that baking a specially designed cake does not constitute a form of expression worthy of protection under the First Amendment.
I would like to propose that you should welcome the bakers' appeal.
First, without regard to your views on same sex marriage or civil unions, the Sweet Cakes decision not to provide their creative and expressive services here DOES NOT resolve the separate STATE LAW issues of whether same sex marriages or civil unions are legal and/or constitutionally required. The extreme examples are often toughest, but they do help to illuminate your logical fallacy. For example, the refusal of a Jewish bakery to design and make a cake celebrating Hitler's Birthday seems to attack the right of individuals to hold political views (neo Nazis, for example), but the bakery holds no sway over such political rights (those rights exist against GOVERNMENT suppression, not popular disapproval). Or the refusal of an African American owned bakery to create a cake celebrating the upcoming centenary of the birth of Klansman, Democrat, and Senator, Robert Byrd likewise seems to attack the right of individuals to hold a political opinion (klansman or other Democrats), but, again, that right is against government suppression, it is not a right to be free from the sensible disapprobation of the public.
In fact, if you support the impressed labor and slavery of others against their consciences and agree that expressive and creative acts can be made the stuff of judicially imposed orders, you might check your tyranny privilege. Yes, regardless of race, creed, ethnicity, you likely believe that WHAT YOU BELIEVE is so important that others can be made to suffer economically and in essential liberties in services of your beliefs ... while you never suffer for theirs. That is the essence of tyranny.
Second, I too, from time to time, have found the automatic invocation of persecution and the annual cry "War on Christmas" wearying. But I have explained here and elsewhere before, much that is described in terms suggestive of "persecution," is just the product of the pluralism that this Nation has come to prize so highly.
If Walmart holds a "Holiday" Sale rather than a "Christmas" one, no one forces me to shop at Walmart if I think that an odious attack on Christianity. Walmart's decision might be the overt outworkings of anti-religious bigotry by its board ... or it might be a kind of inclusivity that makes sense for a business that exists to, well, make a profit.
Real persecution exists, including in America, although "persecution" in America is nothing like what is inflicted on Xians BY LAW in many ISLAMIC COUNTRIES, and what is inflicted outside of law, for example, by Hindu extremists in India (where, just a few years back, such extremists burnt an evangelist to death in his car).
But the story of the Boy Crying Wolf exists for a reason, and I suppose the drumbeat strains of the wolf cry remain in your ears and serve to dismiss the significant difference between a judicial prosecution for failing to apply one's creative and expressive talents in service of a celebration that offends one's religious sensibilities and, for example, the harm of being told "Season's Greetings" rather than "Merry Christmas" at your local Walmart.
Still, you should consider setting aside your tedium with the "Christian persecution" industry in America to consider the likely harm to something you DO CONSIDER IMPORTANT: your own rights of conscience, your own liberties.
John Donne wrote that no man is an island separate and entire to himself. You may not find it possible to drum up concern for the bakers at Sweet Cakes, but can you drum up sympathy for the lesbian owned printing company that is forced to print gospel tracts stating that homosexuals are deviant sinners and will suffer eternal damnation? If you can do that, if you can fear for their liberties, their conscience, their freedom, then simply transfer your concern to this matter so that you can grasp the danger.
Third, perhaps you doubt that baking a cake constitutes a form of expression entitled to consideration under the First Amendment and State Constitutions.
If Sweet Cakes sold "stock" cakes, off the shelf, so to speak (the way one can go to the bakery section of their local grocer and find all occasion cakes packaged and ready to be carried away) but refused to sell their ready made cakes to the lesbian couple, that would, under Oregon law, likely evidence a denial of public accommodations on a ground not protected by law. Those aren't the facts here.
Sweet Cakes conducts consultations with its clients before creating their custom wedding cakes. That provides the bakers necessary inspirational ideas from which to engage their creative, design, and expressive talents. The execution of those talents produces a unique cake, evocative (when successful) of hopes, aspirations, emotions, ideas. Even if not terribly successful (sort of the Lord Bulwer Lytton of confections), that would not detract from the obvious creative and expressive aspects of cake design.
Now, while you might dispute that such designs -- whether complex such as the wedding cake created for the wedding of Queen Elizabeth and Prince Phillip nearly 70 years ago or more simple ones -- involve expressive elements sufficient to give rise to First Amendment considerations. On the other hand, perhaps you wondered how luddite conservatives missed the obvious expressive value of performance artists sprinkling bean sprouts on their chocolate glazed, nude bodies? It would be a self-inflicted wound to mistake your discounting of the value of a particular message or form of expression with the absence of one. We all depend on the broadest, unfettered right of expression to keep government in check. Here, perhaps, your ox is not gored by doubting the expressivity of wedding cakes, but with foresight, you should consider how your ox CAN BE GORED if you tolerate the government's ability to disregard the expressive components of the arts and artisanal work of others.
How the Oregon appellate courts will treat this appeal remains to be seen. Why you should care, I think, is obvious. If you value freedom of speech, if you value rights of conscience, then, like me, you wish Sweet Cakes success in their appeal
