Tag: same-sex marriage

On Cake, Creativity, & Religion in America

Today, the Supreme Court will hear oral arguments in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission, a.k.a. “the wedding cake case.”  In 2012, baker and cake designer Jack Phillips of Masterpiece Cakeshop in Lakewood, CO informed David Mullins and Charlie Craig, that he would not make a new cake for their wedding due to his Christian belief that same-sex marriage is a sin.  This circumstance will look to many like a 14th Amendment, equal-protection case—one fraught with emotion for the LGBT community and those of us who defend gay rights. But, this particular conflict may be a bit trickier than it appears.

It is my own view that the most important elements of the First Amendment—a true master stroke for the late 18th century—are the balancing forces of the exercise and establishment clauses.  In recognizing the slaughter-bench that religion had made of Europe for centuries leading up to the American experiment, the relative harmony achieved by simultaneously rejecting a national religion and protecting the free exercise (or no exercise) of a plurality of beliefs is central to the function of all other civil rights in the United States.  After all, if there were a state religion, or if we failed to protect a diversity of views, the rights of free speech or a free press would be utterly meaningless.

In this regard, the current trend that seeks to upset constitutional balance by asserting the exercise of one religion (Christianity) over secular laws like the 14th Amendment is toxic beyond the immediate issue of gay rights affirmed in Obergefell.  For instance, Rep. Labrador’s proposed First Amendment Defense Act (FADA) would be a legislative end-run around equal protection that would empower a landlord to refuse housing; an employer to refuse a job; or a doctor to refuse treatment to citizens in same-sex marriages.  But in addition to being a transparently bigoted proposal, it is more broadly an assertion that the Book of Leviticus supersedes the Constitution; and I would caution even the most ardent Christian Americans to be careful what they wish for.  Such views tore nations apart for much longer than U.S. has existed.

So, while I am personally adamant, to say the least, that secular law always prevails over religious “law,” it is precisely because of this principle that I wonder if Phillips’s argument in the “wedding cake” case may be more difficult than it appears.  My right as a secularist to publish this post is codependent with protecting Phillips’s right to speak (or not speak) in accordance with his views. The speech protection cannot discriminate based on the motives of the speaker, which brings us to the question of whether Phillips’s cakes can reasonably be called creative expressions.

How creative is a wedding cake?

If I understand Phillips’s argument correctly, the issue in this case is far more subtle than a typical 14th Amendment conflict in which a proprietor outright refuses service to a customer based on some form of discrimination.  According to this account in Reuters, Phillips did not demand that Mullins and Craig leave his shop, and he offered them other products that had already been made.  What Phillips refused to do was to take up his creative brush, as it were, to make what he feels would have been a new artistic expression celebrating an event he cannot endorse. In short, what makes this case distinctive from, say, a mechanic refusing to fix the couple’s car, is that Phillips may be standing on fairly solid free speech ground if the service he refused to provide is held to be creative enough under the law.

Writing as someone who despises both bigots and “religious-freedom” laws but defends artists, copyright, and free speech, I have to admit that Phillips’s claim is not entirely dismissible simply because I reject his point of view.  Although a cake is too temporary a medium to qualify for enforceable protection under copyright law, copyright principles may still be instructive to a legal interpretation of his claim that his cakes are artistic expressions. This is because the design, painting, and arrangement of elements on the cakes could very likely meet the modicum of creativity standard required to call Phillips’s pictorial, sculptural, & graphic (PSG) work “original” in a copyright context. This may be relevant because a court, which has no business acting as cultural critic (i.e. deciding what conduct is or is not “artistic”), can look to copyright law for guidance as to what defines “creative expression” in a legal context.*

So, if it can be established that Phillips (or any baker with his level of skill) is engaged in creative expression while designing one of these cakes, then his free speech argument has merit, regardless of the discriminatory nature of the religious belief behind the speech. Under this analysis, the obvious problem with a holding against Phillips is that it would set a precedent whereby a different creative cake-maker could not refuse to make one of her expressions to celebrate a party for the Ku Klux Klan.  Or what if the medium is more permanent than a dessert?  What if the artist is a portrait painter or photographer?  Does the 14th Amendment require that the artist accept a commission to make a portrait of some figure who represents something he reviles? Certainly, most people would agree that equal protection for the customer, in this case, does not supersede the artist’s speech right to refuse to create the work. Like it or not, the rationale may be the same if the “canvas” is a cake.

Michelangelo hated painting the Sistine Chapel.  As beautiful as it is, there is an extent to which the entire undertaking is not his expression of choice, but rather an expression of his especially thorny relationship with the Medici and the Roman Church. His life exemplifies the precarious relationship many artists had with society and religion throughout most of western history. It was not until the late 19th century that art truly began to assert itself as something distinct from doctrines of morality; and one role copyright has played in that narrative is that it allowed the artist freedom to express herself without the constraints of patronage, religion, or government, which were usually intertwined.  But in order to protect this principle of artistic independence, we probably have to uphold the rights of all creators equally, whether their personal motives are secular or religious — or even unkind.

Laws designed to protect “religious freedom” like the FADA bill are extremely dangerous in my view because they upset the very delicate balance between exercise and establishment that I truly believe is the yin/yang of American civil liberties. But equally dangerous is any precedent that would coerce an individual to speak in a manner that he does not choose. Like religious-freedom laws, a victory against Phillips in this case could have some nasty, unintended consequences for creative expression.  So, as strenuously as I would use my speech right to defend the right of Mullins and Craig to enjoy equal protections, I am likewise sure that—if Phillips is held to be conducting creative expression—he cannot not be compelled to express himself for any reason.

Personally, I think people like Phillips who cherry-pick Leviticus as an excuse for discrimination are fundamentally mean-spirited and crazy (I mean have you read Leviticus?) And the kind of political figures and institutions who support this beatified baker are generally a threat to democratic principles (and some of them are pedophiles it turns out). I’d be happy to see these people lose.  But as a matter of dispassionate analysis, it may not be so easy, or even desirable, to define Phillips’s cakes as non-expressive; and it will be interesting to see what the Court makes of this argument.

ADDENDUM:  To look at this in another way, if copyright’s principles were to define Phillips’s cakes as creative expressions, then those same principles also provide boundaries that should prevent this case from serving as precedent for a broader range of “creative” services (e.g. floral arrangement).

*See this post about Star Athletica v Varisty and the subject of separability.  Based on Justice Ginsberg’s opinion, Phillips could theoretically register his designs with the USCO using another medium like paper prior to applying them to the cakes.

Photo by ivonnewierink

Is copyright a threat to free speech?

This is a piece I wrote as a guest post for The Copyright Alliance. It got the folks over at TechDirt into a lather, but I suspect that’s because it wasn’t read or read very carefully by most of them.  

Not only have Copyright and Free Speech coexisted peacefully for the entire history of the Republic, but I would go so far as to suggest that Copyright is both literally and figuratively the money where our proverbial mouth is when it comes to the power of the First Amendment.  Think about it:  we are not only free to criticize our government, but if we’re really good at it (like Lewis Black), we’re entitled to make a pile of cash doing it.  How cool does that make America?  I say pretty cool, but there are those who seem to think the enterprise piece of the equation somehow diminishes the freedom part.  Au contraire.

If the U.S. is founded on one idea above all others, it’s that there is a link between free enterprise and freedom itself. Yes, this ideology has its flaws, and we’re still living through the economic woes of certain kinds of enterprise run amok; but let’s not throw out the baby with the bankers just yet. I believe it is no accident that we grant special rights of enterprise to those who exercise free speech in the form of books, music, and the performing and visual arts. After all, the First Amendment guarantees the right of anyone on U.S. soil to speak, but it in no way guarantees that everyone has something to say.

I know this may be hard to believe in the age of Tweetdecks, blogs, and threads; but all speakers are not created equal. Those who speak well enough to do it for a living have benefitted society in precisely the way intended by Article I Section VIII of the Constitution; and while you may quarrel with a particular form of expression, you can’t quarrel with the trillions of dollars in economic activity derived collectively from all works. Still, the mental contortionists of the copyleft claim that copyright, in the magic wonderland we call The Digital Age, now threatens Free Speech. And their position reminds me of another First Amendment stumper:  that same-sex marriage threatens the Freedom of Religion.

As alluded to in one of my recent posts the Kantian principle that your rights end where they infringe on the rights of another is logically implicit, if not explicit, in the broad, human rights established in our laws.  In a nutshell, society functions because most of us agree that your pursuit of happiness does not extend to a right to, say, drive an ATV across my yard and tear up the garden. Strangely, though, we often encounter folks trying to argue this principle in reverse — i.e. that my right to restrict trespassing infringes on your right to drive an ATV wherever you please.  Yeah, this sounds dumb because it is; but the logical construct is applied by religious zealots regarding same-sex marriage and by copy zealots (they actually have a religion now) regarding copyright.

The craftiest of gay-marriage opponents will argue that legalizing these unions infringes on their rights to be Christian in America, which is tantamount to undermining religious freedom.  Yes, anyone with two working brain cells can recognize that this isn’t sound reasoning so much as thinly veiled bigotry. Same-sex marriage can only be a threat to religious freedom if we agree that the zealot’s belief that homosexuality is a sin should implicitly influence our legal definition of marriage. There is no way to cut through this logical Gordian Knot without concluding that all marriage would have to be religious (and ultimately Christian) in order to be legal in the U.S.  And that would violate the definition I believe most of us apply to religious freedom.

Similarly, the copyright-threatens-speech proposal uses the illusion of reverse discrimination to suggest that when the producer exercises his copyright, this somehow infringes on the consumer’s desire to reuse or “share” the work as he sees fit, which amounts to a “chilling effect” on speech. Like the same-sex marriage thing, this argument glosses over personal bias to foster a logical leap to a shaky conclusion.  Copyright only threatens speech if we agree that the consumer’s right to reuse is more important than the producer’s right to treat his work as property. But we haven’t agreed to this for the same reason we don’t agree that you may drive an ATV over my lawn in the pursuit of happiness.  Freedoms have boundaries defined by the harm done to others; and free speech has managed to survive just fine despite the fact that it does not grant permission for plagiarism, perjury, libel, vandalism, disturbing the peace, hate crimes, or, indeed, theft of intellectual property.