Beliefs Mark Silk: Spiritual Politics Opinion

Gary Johnson goofs on religious freedom

Libertarian presidential candidate Gary Johnson is seen during an interview before a rally in New York, on September 10, 2016. Photo courtesy of Reuters/Mark Kauzlarich

(RNS) Interviewed by CBN’s David Brody this week, Libertarian presidential candidate offered a Solomonic reading of religious liberty law as it relates to bakers who don’t want to sell wedding cakes to same-sex couples.

“In the case of the bakers, the bakers have to sell the cake but the baker doesn’t have to decorate the cake,” Johnson said. “That’s the First Amendment that comes to play. You don’t have to decorate the cake but you are in business so you got to sell that cake.”

So, pursued Brody, “you are saying the Christian business owner would have to sell the wedding cake …”

“But doesn’t have to decorate, yes,” Johnson replied. “That’s the reality of the law.”

Actually, that isn’t the reality of the law. The reality of the law is, at the moment, that the baker has to to decorate as well as sell the cake.

The baker now in question is Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, who four years ago turned down a gay couple’s request for a wedding cake because of his Christian beliefs.

The couple took the case to the Colorado Civil Rights Commission and ultimately prevailed in the Colorado courts. Phillips is now petitioning the U.S. Supreme Court to hear the case.

In the public square, the bakers (and florists and photographers) who want to withhold their services from same-sex weddings are all about freedom of religion. But in the courts, the arguments are increasingly about freedom of speech.

The central question has become whether it is unconstitutional state-compelled speech for a commercial enterprise to be required to (for example) decorate a cake with the words, “Congratulations, Adam and Steve!”

Who do you understand to be speaking here? The baker? The wedding attendees? Whoever bought the cake? The question remains to be definitively decided.

But Gary Johnson’s imagined distinction between having to sell a cake but not having to decorate one is unlikely to satisfy anyone.

Gay couples will want their decorated cakes even as Jack Phillips considers the entire business of baking and decorating a wedding cake to be one and the same artistic thing.

And I can’t even imagine how such a distinction would apply to florists and photographers.

About the author

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service

26 Comments

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  • Perhaps Mr. Johnson means that the baker does not have to write the words “Congratulations, Adam and Steve” on the cake, so as to not violate his First Amendment rights, but otherwise has to decorate the cake. We would sympathize with a baker who refused to write “Death to all “, maybe this has the same First Amendment implications. But, he otherwise must bake and decorate the cake.

  • Perhaps it is that this article is being disingenuous or represents a knowledge gap between the writer and the material. Gary Johnson was referring to a particular state law called the “Utah Compromise”. It’s true that he should have mentioned that it was a state law but the point that Johnson was making was that he agreed with the Utah law. Personally, I think it’s a good compromise and I’m sure he would sign such legislation if he were in office.

  • I’m not sure the Supreme Court will take this on, it has a tendency sometimes to deny cases even when there’s a principle of clarification at stake, however useful that might be. Under the present Court I don’t think either Gov. Johnson or Jack Phillips would receive the Court’s approbation.

  • The so-called Utah Compromise (http://le.utah.gov/~2015/bills/static/SB0296.html ), passed in 2015, does not address the issue of bakers (or other businesses) declining to serve same-sex couples (or anyone else) on religious or free speech grounds. It does not deal with commercial transactions at all. It is confined to discrimination against LGBT people in housing and employment. Gary Johnson could not have been referring to it.

  • The “death to all” example is wrong. A baker can refuse to write anything on a cake, incl. “death to all”. But he or she cannot sell a “death to all” cake to one type of person, but not to another type of person.
    So if heterosecual couples can get cakes with “Congratulation, name1 and name2”, the baker must also sell such a cake to a same sex couple. It’s rather simple.
    Think about this: A baker sells a cake “Congratulation, Mary and John” to a same-race couple, but not to an interracial couple based on “religious beliefs”. Clearly this is discrimination. So why are heterosexual and same sex couples different?

  • Libertarians ironically generally have a terrible view of civil liberties. They promote discrimination as if the rights of companies, businesses and the politically powerful are more important than individuals. They decry the most effective methods and agencies for fighting discrimination, Federal authority and the 14th Amendendment Equal Protection Clause.

    Compromise on civil liberties issues never resolves such issues. All it does is delay matters until it reaches a boiling point. (DADT and DOMA are perfect examples of these “compromises” which promoted discrimination and had to be removed).

    There is no such thing as a well intentioned discriminatory act. Bakers and vendors who do business in open commerce and refuse gay customers do so out of malice and animus against treating gays like anyone else. We do not need a return of segregated marketplaces. Where customers had to navigate the personal prejudices of vendors to get goods and services meant to be available to the general public.

    As an aside, the Utah Law was still a terrible one which promoted discrimination at the level one sees it most. Small scale businesses. If not for the hold the LDS church has on the majority of the voters in the state, it would have been tossed in the trashbin along with Indiana’s similar laws.

  • First Amendment rights of the baker are not in play here, as we are talking about a product which is commissioned by the customers. It is the customer’s speech involved here. The baker is merely facilitating it in a commercial transaction. But the whole scenario being posited is fictional nonsense anyway. In every instance of wedding suppliers discriminating against gays, it is the refusal to do any substantial business with the customers. The vendors choosing to be malicious d-bags towards gay customers rather than make reasonable efforts.

  • Wow, Ulrichsson, you’re making too much sense here! Careful now, you’ll give this RNS Comments section a bad name!

  • Seriously, the “Nazi wedding cake dilemma”? This is of interest to what – about .01% of America? How about the Libertarians’ view on privatizing federal highways? What about whether the state has the right to “force” parents to feed their kids?

    What are the opinions of Trump, Clinton, and Stein and McMullin on this subject?

  • an inconsistent libertarian. how about FREEDOM? bakers have to serve LGBT folks 99.999999% of the time. but when it comes to wedding cakes. thye have the freedom to say no. 99.9999999% of the time they don’t have that freedom. If we are going to wave the banner of tolerance, there should be wiggle room for all people who disagree, even if you think they are wrong.

  • The cake issue ranks with the size of Trump’s hands as the most lame “story” of this campaign season. Get over the cake!!!

  • “It’s rather simple.”
    Well, that’s what the courts are being asked to decide. Where do we draw the line requiring a baker to write or decorate something offensive to the baker. Clearly it’s not as simple as the “Congratulation, name1 and name2” example. If I sell a cake saying “Goodbye, John” for a going-away party, can I be forced to sell a cake saying “Goodbye, ” followed by a racial or ethnic slur, or a profanity-laced phrase? The compelled speech argument for the first amendment suggests not. So, how far do we go in allowing a baker’s deeply-held beliefs to dictate when he can discriminate? That’s what courts are being asked to decide. I hope they say that when you’re in business selling to the public, you cannot discriminate, and let community standards settle the (non-existent) problem of what can be written on the cake. Bake the cake!

  • Mark Silk is just as wrong about religious freedom as Gary Johnson. Mark Silk completely ignores that the law varies by state and there are still many states where businesses can actually fire you just for being LGBT. But Mark Silk apparently wants to make it all about cakes to make a cheap political swipe. I’m not a big fan of Gary Johnson but it is getting tiresome the way the media keeps trying to find any excuse to attack him.

  • “It is the customer’s speech involved here.”

    No. That’s a terrible precedent. That would lead to a world where professional speakers could be legally compelled to say whatever horrendous thing a racist wishes them to say.

    Or myself as a programmer being compelled to create a website for ISIS or something.

  • How on earth do you think DOMA was a “compromise”??

    “There is no such thing as a well intentioned discriminatory act.”

    I disagree. I will freely continue to discriminate against racists, homophobes, and other sorts of bigots in my personal life.

  • DOMA watered down any attempt at national level gay marriage bans. Pushing marriage equality to a state by state basis. The gay marriage opponents were not satisfied, neither were it’s supporters. A compromised result which only delayed resolution of the issue.

  • They do that right now. Do you think Stormfront was created entirely by white supremacist programmers, sysadmins, and domain servers?

  • I have no religion, but I have considerable animosity towards literal believers of myths and legends. My neighbor drilled her young child at Easter to say “He is risen” in response to my Easter Bunny inquiry. If I sold cakes, I would have a serious objection to writing “He is risen” on a cake. Gary Johnson may be mistaken about the law, but he suggests a reasonable relationship between goods in stock for sale to the public, vs. performing a personal service. I would prefer to err in favor of individual rights, rather than group rights.

  • “can I be forced to sell a cake saying “Goodbye, ” followed by a racial or ethnic slur, or a profanity-laced phrase”

    If you were doing it for one group but not others it’s discrimination. Which was the point. These bakers have deeply held beliefs that the customer is not worthy of consideration if they are gay. It’s not the alleged message, it’s the people asking for the services. So let’s put that garbage analogy to rest once and for all. It dishonestly states the issue.

  • As a former high end wedding photographer, I have been to over 1000 weddings. In one case, and one case only– a grooms cake, which is a particular, southern tradition all its own– was there EVER anything written on a wedding cake.

    It’s a cake, not a religious statement. But “I won’t serve you because I don’t approve of you and what you are doing” is not a cake. It’s an intent to discriminate on the basis of religious belief.

  • “Do you think Stormfront was created entirely by white supremacist programmers, sysadmins, and domain servers?”

    It was created by people willing to provide that platform. Willing to provide that speech. No one was FORCED against their will to accommodate the Nazis and their vile desire to spread their nonsense.

    Even if you think we live in a world where the Nazis can force me to service them despite what they did to my family, that wouldn’t make that state of affairs RIGHT. I should have a right to refuse to serve the people who support the ideology that threw my ancestors into camps, and if you disagree with that, I think your ideal society is just plain stupid.

  • The people creating the platform are not the people creating the speech.

    AA baker’s work is not a first amendment speech issue. It is a commercial transaction one. If you can’t find a way to turn down services without looking like a discriminatory malicious dillhole, you are not intelligent enough to stay in business.

    By the way the KKKake argument is such an effing dishonestly stupid analogy. It misses the point entirely. It’s not the product at issue, its the customer. The bakers provide the same service and product to straight couples that they deny gay ones. Why one but not the other? Bigotry.

  • it’s not about the people it’s about the event. No one that I know of has said “you are gay I will not bake your cake” they have declined because a same-sex union ceremony is against their believes. Very large difference.

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