‘No compromising morality on some legal technicality,’ has been the longstanding credo of Notorious RBG. Especially no compromising when it comes to Jack Phillips, the baker of Colorado’s Masterpiece Cakeshop ltd. and not when it comes to LGBT rights.
Though hearing the moniker Notorious RBG evokes images of a badass gangster rapper, it’s the well-earnt name of Associate Supreme Court Justice Ruth Bader Ginsburg whose entire career has been built on the premise that ethics never take a backseat to legalities when it comes to justice.
Most recently, RBG rebuked the US Supreme Court decision that stated that Colorado Civil Rights Commission didn’t give a fair hearing to the baker Phillips of Masterpiece Cakeshop, Ltd when it ruled that he had violated Colorado’s antidiscrimination law by refusing to bake a wedding cake for Charlie Craig and David Mullins. Being one of the two judges – Justice Sonia Sotomayor being the other – in disagreement with the other 7 justices of the Supreme Court, RBG went on to say that the majority of the court used false equivalency in coming to their determination.
While the court didn’t adjudicate on Jack Phillips having the right to refuse baking a gay couple a cake on the grounds of his religious conviction, they did come to the conclusion that the Colorado Civil Rights Commission had acted reprehensibly in the manner in which they addressed Phillips’s grievances.
Phillips’s lawyer was no idiot. Instead of claiming that his client refused to serve gay customers, he insisted that his client was an artist who expressed himself in the form of baking and it is part of his own First Amendment rights to express himself in a manner consistent with his own beliefs and those were based on his religious conviction. So why would he be obligated to undermine his own convictions and be forced to design a cake whose theme for which he had a heartfelt distaste – namely the marriage of two same sex couples. Had they merely asked for a cake that already existed, he would not have refused to sell it to them since he does not judge his customers. But it was his prerogative to design only that which was in keeping with his own sensibility.
To this argument, the Colorado Civil Rights Commission dismissively said that Phillips held beliefs that were repugnant and a similar set of beliefs were responsible for the making of slavery and the holocaust. And it was this behavior from the Commission that the Supreme Court had judged as derisive, siting that the commission had not treated Phillips with the respect they accorded to earlier defendants who similarly refused to fulfill requests from potential clients.
This last point made by the far right wing Justice Anthony Kennedy of the Supreme Court ired RBG to no end. RBG referred to such reasoning as ‘false equivalency.’ Why? Because the examples sited by Phillips’s lawyers and the Supreme Court involved bakers who had refused potential clients specifically because the work being requested of them constituted a hate crime. For example, one baker refused to make a cake with the words ‘Homosexuality is a sin’ on it, while another refused to create a cake with a red-line drawn through same-sex couples marrying.
In both these cases, the issue was refusing to participate in agitation and/or incitement. They were not cases where something considered legal was being affirmed but where something would have been created against the existence of a group. Equating the two is like equating a Jewish or black awareness group marching for its rights with a Neo-Nazi or KKK group marching to take the rights from another. One is pride and a cause while the other is simply incitement to abet repression and prejudice.
The very right leaning Associate Justice Anthony Kennedy had written in regards to his own decision: “To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs.” Phillips “was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”
And it was to this that RBG had responded: “The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”
Justice Ginsburg is no misquoted Marie Antoinette. If anything, she subscribes to a Don’t let them Bake Cake policy when it comes to those like Phillips. If the LGBT community were to have its cake and eat it too, we would have every bakery from New York to Los Angeles inscribe their best creations with the initials RBG.