Let them eat cake and — in Colorado — make others bake it

Let them eat cake and — in Colorado — make others bake it June 2, 2014

I’m no expert on baking, but I suspect that a layer cake should stand straight, not lean to one side. The Denver Post should have followed that recipe for its latest story on the man who refused to make a wedding cake for a gay couple.

The Post article is brief and mostly factual, especially for a newspaper that has written a lot of stories on the case for nearly two years. But it favors the gay side, both in what it says and what it does not say. And it leaves a number of unanswered questions on a matter that has several levels.

Cake shop owner Jack Phillips has become something of a cause celebre for religious rights folks, but he’s still getting, shall we say, battered. Colorado has just imposed a penalty on him that sounds rather like thought police:

The state’s seven-member Civil Rights Commission reinforced a December ruling from an administrative law judge who said Masterpiece Cakeshop owner Jack Phillips discriminated against Charlie Craig and David Mullins when he refused to make them a wedding cake because of religious objections.

In its decision, the panel required Phillips to submit quarterly reports for two years that show how he has worked to change discriminatory practices by altering company policies and training employees. Phillips also must disclose the names of any clients who are turned away.

The article carries three paragraphs of background but sacrifices depth:

Colorado law bans discrimination in a public place on grounds of sexual orientation, but Phillips has argued that forcing him to make wedding cakes for same-sex couples violates his right to First Amendment free-speech and freedom-of-religion rights.

Phillips and his attorney are considering an appeal to the Colorado Court of Appeals. He suggested on Friday that the rights of business owners with similar views were taken away by the commission.

“Not all of life is fair,” Phillips said after the commission’s decision. “I will stand by my convictions until somebody shuts me down.”

Freedom of religion, OK, that computes. If a religion says homosexuality is wrong, its adherents would object to doing anything that might appear to sanction it. But how does making a wedding cake for gays violate free speech?

And exactly what did Phillips mean by “Not all of life is fair”? Was he saying that he had the right to be unfair, or that the court was being unfair to him?

It’s possible that the reporter felt she could talk shorthand because the Post listed seven other stories on the case, going back to Aug. 4. But for those who just dropped in — you and me, for instance — it’s assuming too much.

The article says that Craig and Mullins, the gay couple, has been “inundated with support from people across the country.” Aside from the obvious follow-up questions — “How many? From how large an area? What have they been typically saying? Could I see some of the quotes?” — what about Jack Phillips, the opposition? Does he stand alone? Or have like-minded people spoken up for him as well?

The latter is likely, since the Post quotes a representative of the Alliance Defending Freedom taking Phillips’ side. But the newspaper reveals more favoritism there, calling the alliance a “conservative Christian organization.” It then cites the American Civil Liberties Union without attaching a sticker. It’s a common subtle way of weighting remarks: One group is normal and mainstream; the other group bears watching.

Other ingredients are missing from this story, too.

Like when it mentions a decision from December by administrative law judge Robert N. Spencer:

“At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses,” the judge wrote. “This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”

Spencer said the cake shop owner’s argument “would allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage.”

Questions: What cost to society? And is sexual preference equal to race? That argument has been advanced often. Is it accurate? How?

Coverage of the other side is likewise superficial. Here’s Nicole Martin, Jack Phillips’ attorney:

“It’s either live and work according to his conscience or collect a paycheck and that’s not choice at all,” Martin said. “It’s not a choice Americans should have to make. Appeals take a very long time and they have an emotional and financial toll and that decision just can’t be made lightly.”

Um, what emotional toll? How is it affecting Jack Phillips? The Post mentioned the feelings of Craig and Mullins. What about those of Phillips?

As I’ve said before, a story doesn’t have to answer every question — just the ones it raises. It’s possible the Post reporter was working under deadline pressure, or that the story was cut or condensed on deadline. When either happens, you tend to fall back on cliches and assumptions. But it comes at the cost of context and informing the readers.

One thing is true for journalism as well as cakes: Don’t skimp on the filling.

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10 responses to “Let them eat cake and — in Colorado — make others bake it”

  1. The free speech issue has to do with whether anti-discrimination statutes improperly compel certain businesses to engage in expressions the businesses don’t want to engage in. These are the same well-debated arguments that were addressed by the New Mexico Supreme Court in the Elane Photography case. See paras. 21-57: http://www.nmcompcomm.us/nmcases/nmsc/slips/SC33,687.pdf

    Also, the bakery cases have the added factor that some clients want actual words on the cake that the bakery says it doesn’t want to be forced to say. The issue is the same: whether the government is forcing the bakery to speak the government’s message that same sex marriage is valid and whether the government is forcing the baker to speak the wedding couple’s message.

    Most of the rest of the questions you raise seem like hypersensitivity. The issue with identifying the ADF isn’t a dig at the ADF. It’s not a comparison between “normal” and something to watch out for. Rather it’s just the simple difference between known and unknown. It’s just a reality that the ACLU needs no explanation, but only a tiny percentage of readers will know who the ADF is (especially since ADF changed its name not too long ago).

    The only way you’re going to get any sort of discussion about whether orientation is like or not like race is in a magazine or journal article. Would a “yes it is” and “no it’s not” pair of quotes really have added anything? Doesn’t everyone already have a view on this? Is there something newsworthy on this that hasn’t been said before?

    • If the ADF gets described as “conservative” than the ACLU should be so described. That is not hyper-sentitivity, that is basic respect. There is a reason why I walked out of a law school commencement when the speaker spoke as if the ACLU was the only organization worth giving pro bono service too.

  2. Good point about lack of insight or further info on the issue of “sexual preference being equal to race.” That claimed equivalence is constantly trumpeted by those promoting the gay side of issues. Yet from what little coverage of this issue I have read or heard, nothing more infuriates many Black Americans than the media willy-nilly accepting the argument as having any validity. And even rarer is a countervailing point of view given.
    It will be interesting to see how the courts and the media treat a bakery which refuses to do wedding cakes for anyone. At what point does the legal bullying of bakers to be involved in an activity they consider immoral stop???

    • “Willy-nilly” (from “will he nil he”) would mean that “the media” are being FORCED to accept the “equivalence”. it does not mean “slapdash”, “hastily”, “without thinking”.

      • Merriam Webster (for willy-nilly) : “in a careless and unplanned way. : in a way that does not allow any choices or planning …”

  3. I wish an article on this or a similar topic would dig a little into the irony that anti-discrimination laws are designed so that discriminated classes could engage in legitimate commerce and do things like, say, stay alive: earn wages, buy food and other necessities, maintain a home. And sure, also to enjoy life a little: eat in a restaurant, go on vacation. Meanwhile, those who appear to violate these laws are targeted precisely in the way in which they earn a living themselves.

    • That was well debated and decided half a century ago:

      “It is doubtful if, in the long run, appellant will suffer economic loss as a result of the Act. Experience is to the contrary where discrimination is completely obliterated as to all public accommodations. But whether this be true or not is of no consequence, since this Court has specifically held that the fact that a “member of the class which is regulated may suffer economic losses not shared by others . . . has never been a barrier” to such legislation.” Heart of Atlanta Motel v. U.S., 379 U.S. 241, 260 (1964).

      The Civil Rights Act was *not* just about acces to the minimum requirements of life:

      “The Senate Commerce Committee made it quite clear that the fundamental object of Title II was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.'” Heart of Atlanta at p.250.

  4. The free speech issue here is bolstered in that this cake maker has refused to make cakes for Halloween. The choice of what to support and represent with a cake is clearly a speech decision. This is not just a bland cake, it is a decorated cake that gives a message.

    • Would there be an analogy (realizing that all analogies are imperfect) in websites or printed journals or broadcast media refusing to run ads for certain products or services, or which contain certain kinds of content? Or a sign maker – does a signage business HAVE to make a sign for Planned Parenthood or an adult goods store or a political movement he objects to simply because he makes signs?

      Would a gay baker “gladly” make an opposite-sex wedding cake with a message like “real marriage – one man, one woman”? Is it a matter of who gets to define what is an objectionable message?

      • There’s a good discussion of these issues in the Elane Photography case I linked above. You might find it interesting. It’s not too much “legalese.” Even if you don’t agree with the holding of the court, it explains the photographer’s position and goes through the facts and decisions of the “compelled speech” cases.

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