The National Pulse

Will SCOTUS Heed a 182-Year-Old Warning in Wedding Cake Case?

This article is part of a series focusing on Lens of Liberty, a project of the Vernon K. Krieble Foundation.

In her Liberty Minute titled “Flocks of Sheep,” Helen Krieble quotes a passage from Alexis de Tocqueville’s Democracy in America that is just as pertinent today as it was when it was published in 1835:

A hundred and seventy-five years ago, Tocqueville warned Americans about a new kind of oppression from our own government. He said:

The government covers the surface of society with a network of small, complicated rules, through which the most original minds and the most energetic characters cannot penetrate; the will of man is not shattered, but softened, bent and guided; men are seldom forced by it to act, but they are constantly restrained from acting; such a power does not tyrannize, but it compresses, extinguishes, and stupefies a people until a nation is reduced to nothing better than a flock of timid animals of which the government is the shepherd.

We must look through the lens of liberty and take back our freedom before it’s too late.

Bearing in mind Tocqueville’s condemnation of government which “compresses, extinguishes, and stupefies a people,” let us consider a current Supreme Court case which has the potential of fulfilling Tocqueville’s prophecy.

The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, a legal battle being fought by Alliance Defending Freedom on behalf of Jack Phillips, a cake artist whose religious beliefs will not allow him to create same-sex wedding cakes. At question is Jack Phillips’ First Amendment rights of both freedom of religion and freedom of speech.

On Tuesday, all eyes were turned to Washington, D.C., where the Supreme Court began hearing oral arguments for the high-profile case. Although rarely reported on, what happened behind the scenes — the filing of amicus curiae briefs — is just as important to consider.

Of particular note is one amicus brief filed by 479 creative professionals from all 50 states, D.C., and Puerto Rico who are concerned that the Court’s decision could jeopardize their freedom of expression. While the cake artists, florists, photographers, songwriters, actors, painters, musicians, cartoonists, and journalists who filed the brief have differing views on gay marriage, they all agree that the government should not be able to dictate what messages they can and cannot expresses:

Artistic speech, whether expressed through painting a picture, taking a photograph, or designing a cake, is constitutionally protected and should be treated as such. The expression should neither be silenced nor coerced. Though the concern is currently most pressing in the same-sex wedding context, it is not so limited. Creative professionals of all stripes stand to suffer from undue compulsion, depending on how this Court rules here.

The brief gives specific examples of how this decision will effect much more than just the issue of same-sex marriage:

Just consider the impact of this compulsion in other conceivable contexts. Should an African-American supporter of “Black Lives Matter” be required to make and design a cake for a white nationalist function? Must a graphic designer who supports gun control create advocacy literature for the National Rifle Association? Is an atheist photographer obliged to take and publish pictures of a Christian baptism?

Answers to these questions should not lie with the ideology of the bureaucrats involved, or the latest popularity polls, but with a grounded understanding of the Free Speech Clause. And this understanding does not compel citizens to utter messages — through art of their own making — that betrays their values, wills, and consciences, as well as their tongues.

The artists conclude their brief by rebuking the “apparent end-game of this compulsion” which is to force artists to promote a particular political ideology sanctioned by the State:

In compelling creative professionals to create art promoting a message they would not say otherwise, the government deprives them of dignity and autonomy, treating them like puppets that perform solely for the government’s pleasure.

“Puppets that perform solely for the government’s pleasure” — that sounds strikingly similar to Tocqueville’s “flock of timid animals of which the government is the shepherd.” It is obvious then that there is a lot more at stake here than just a wedding cake.

Terry Schilling

Terry Schilling is executive director of the American Principles Project.

  • Ditties from the Bible
    I guess a racist business owner can deny service to an interracial couple based on his right wing religion.

    I disagree!

    Mixed Races Incompatible

    Genesis chapters 12-25. Abraham’s Egyptian handmaid Hagar gave birth to Ishmael; Sarah, the pureblood woman, to Isaac. The boys of different lineage were incompatible. God had Abraham send Hagar away with Ishmael to form a separate people (Arabs), without inheritance with Abraham’s seed.

    Racial Purity Sought for God’s Covenant People

    Genesis 24:3-4. “…Thou shalt not take a wife unto my son (Isaac) of the daughters of the Canaanites (dark) among whom I dwell; But thou shalt go unto my country and to my kindred and take a wife unto my son.”
    Genesis 28:2. “Arise (Jacob), Go to…the house of Bethuel thy mother’s father, and take thee a wife from thence of the daughters of Laban.”

    Separate and Different Peoples Pre-Determined

    Genesis 25:23. “Two nations are in thy womb (Esau and Jacob), and two manner of people shall be separated from thy bowels.”

    • Jewish law that Jesus said doesn’t have to be followed, there were no Christians in the Old Testament. Old covenant, new covenant ….

    • So was your god right or wrong in the Old Testament when your god said this?

      Interesting point about Jesus, the same Jesus who never mentioned a single word about homosexuality.

    • I also notice you don’t cite a specific quote in the Bible that straight-forward mentions same-sex marriage.

      You lied about that, right?

    • Peter you don’t own Christianity. The Biblical quotes I posted have been used by business owners as a reason to refuse to serve interracial couples. Who are you to deny these people their religious liberty. Peter, we don’t live in your theocracy.

  • The question is, does state govt have the authority to force a business owner to sin. No Christian can rewrite the Bible or ignore parts to please an oppressive state government. To be a true Christian one must have faithful obedience to God’s word.

    The Bible says, “Therefore to him that knoweth to do good, and doeth it not, to him it is sin” (James 4:17)

    While sin is a personal act, we have a responsibility for the sins committed by others when we cooperate in them:

    • by participating directly and voluntarily in them
    • by ordering, advising, praising, or approving them
    • by not disclosing or not hindering
    • by protecting wrong doers

    To a true Christian, same-sex unions and same-sex marriage are a sin. You cannot separate freedom of worship, right of conscience, and freedom of speech without denying Christians the free exercise of religion. This is about the homosexuals forcing a Christian baker to sin, no one has to support a sinful behavior like homosexual marriage, like it or not, same-sex unions and same-sex marriage are a sin to true Biblical Christians. Also remember, homosexuals are not born that way, that is a myth… all behavior is a choice, unless a mental disorder/illness is involved. There is no scientific proof for believing anyone is “born that way”

    • A Chrsitian God made me Gay!!!

      Maybe the sinister force Pete Old Boy worships gave him a choice about his sexual orientation. Really. If it is a choice, then Pete Old Boy can tell us all about the day he made the decision to be heterosexual. Pete Old Boy, do put this myth to rest. Tell us all about the day you choose to be heterosexual. Give details about the day—time, date, etc.

      Otherwise, you are fibbing–and God doesn’t like a fibber.

    • I made the decision the day I decided I wanted to have a wife and kids… you know and follow the law of nature. Same-sex couples can’t procreate or contribute to the continuation of the species.

    • So before that day you weren’t heterosexual? What age was this? What was your sexual attraction before this day you knew you wanted to have a wife and kids? What made you decide to have a wife and kids, especially since you weren’t not attracted to women until this “decision.”

      Why are you not being truthful?

    • The “laws of nature” have me same-sex attracted to men, just like God designed!

      It was no decision. It is certainly no sin.

    • If your sexual orientation was made during conception, you then didn’t make that decision, it was in your DNA.

      Thanks for calling Pete Old Boy a fibber!

  • It sounds like Schilling opposes accommodation laws, as settled by the Supreme Court a long time ago. That is, an interracial couple (for instance) shall not be discriminated against in a public accommodation despite a public accommodation’s religious objection to serving the interracial couple.

    Perhaps Schilling can tell us why an owner who signs a legal contract (the terms of obtaining a business license) promising to abide by the state’s laws nonetheless can break that contract and thus break the law.
    Do tell.

    • There is no prohibition of interracial couples marrying in the Bible, but there certainly is one against same-sex unions.

    • You should read the Bible one day before referring to it.

      Actually there is absolutely no mention at all of same-sex marriage in the Bible–not a single word.

      But there’s plenty of words sanctioning slavery!

  • Does Schilling believe public accommodations have the legal right to discriminate against anybody the owner hates (likes blacks and Jews), or is it just gay people who are selectively open targets for such vicious abuse? He didn’t make that clear in this article.

    • Behavior? The only “behavior” happening in that shop is the behavior of buying a cake. Any other “behavior” is that what is happening in your over-sexed mind.

      Meanwhile the paralell is absolutely correct. A white personal chooses the behavior of marrying a black person. Choice. Interracial marriage is a behavior, a choice.

      Nice spin on your part!

  • So I guess Schilling has always been opposed the Supreme Court decision that ruled one can’t invoke the First Amendment to discriminate against interracial couples in public accommodation.

    Why has he been silent about that?

    • Nope!

      Your argument is mindless spin. Interracial marriage involves choice–a white and black person CHOOSING to marry. Behavior.

      If you don’t believe a public accommodation use right wing religion as a reason to treat an interracial couple with contempt, then it should be equally immoral and illegal to treat a same-sex couple with discriminatory contempt.


    • I am a Christian. After all, God blessed my same-sex marriage, a wedding performed in my Christian Church.

      The hate you have for God’s gay children is the sin.

    • A custom specifically designed and DELIVERED cake is a contractual service not a public accomodation. In many cases the cake artist is required to take part in the festivities. Agreed, apples and oranges regardless of your skewed take on the matter

    • Contractual?
      Interesting you would bring that up. The heinous monster baker also signed a contract in order to get a business license. Under that contract he agreed to the state and federal anti-discrimination laws. The heinous monster broke that law, therefore also breaking his contract.

      Thank you for bringing up contracts. Not only is this straight-forward a public accommodation issue. It is also a contractual issue!