The conflict between religious liberty and anti-discrimination values is public and dramatic.  Many have strong, solidified opinions about how to resolve the conflict, and there isn’t an obvious way to balance or compromise the interests.  Two of the most recent and most contentious iterations of this conflict – Masterpiece Cakeshop v. Colorado Civil Rights Commission and Mike Pence’s dining policy –demonstrate the tough questions facing both sides of this debate.

Masterpiece Cakeshop presents the issue of whether a self-described “cake artist” has a First Amendment right to refuse to create custom-made cakes for same-sex weddings.  Jack Phillips, who owns the small business called Masterpiece Cakeshop, is happy to sell same-sex partners other treats for their weddings.  However, he objects to the state of Colorado compelling him, via their public accommodations law that prohibits discrimination on the basis of sexual orientation, to sell a cake that celebrates same-sex marriage.  Phillips doesn’t want to make art that expresses a message contrary to his religious faith, just as he forgoes the profits he could earn if he sold alcohol or Halloween-themed cakes.

The petition for certiorari for Masterpiece Cakeshop has been considered at five Supreme Court conferences.  The Justices still haven’t issued an order on whether to grant or deny review, which may mean that one of the Justices is writing a dissent to the denial of certiorari.

On balance, I do not think the Supreme Court should review, or reverse, the Colorado Court of Appeals’s decision in Masterpiece Cakeshop.  For one, this case is a bad vehicle for review because Phillips refused to sell a wedding cake to a same-sex couple before the particulars of the cake’s design were even discussed.   For another, I think the Colorado Court of Appeals’ decision, holding that Phillips engaged in unlawful discrimination and that his behavior is not protected by the First Amendment, is probably correct.  The business of making and selling cakes likely involves expressive conduct, not pure speech, and may even be categorized as prohibiting simply the conduct of discrimination – treating similarly situated individuals who want cakes differently.  Plus, a message celebrating a same-sex marriage on a wedding cake is unlikely to be attributed to the cake seller.

However, difficult, thorny issues with the lower court’s ruling abound.  The creation of an artistic, custom-made wedding cake may actually constitute pure speech, just as the creation of an oil painting is pure speech, even though the process of creation involves some conduct.  The state of Colorado asserts that it can lawfully compel a commercial painter to paint portraits for same-sex weddings as well.  The state’s position seems based on the dangerous view that if a law compels speech, then the speech will not be attributed to the individual.  This circularity (if the state forces you to create speech it is allowed to force you to create speech) will seriously interfere with First Amendment rights of private speakers, who cannot be forced to be the mouthpiece of the state.  The fact that Phillips sells his cakes for profit may not help the legal analysis, because many artists and writers also earn a living creating expression.

Further, the Colorado Commission on Civil Rights has drawn some potentially inconsistent distinctions in its application of Colorado public accommodations laws.  Muslims are permitted to refuse to sell cakes disparaging the Koran, and African Americans need not sell cakes to white supremacists.  Although these cases seem easily distinguishable because the refusal to create a cake is based on the message conveyed, cake sellers are also permitted to refuse to sell cakes containing religious messages, including Bible passages condemning homosexuality, even though Colorado law also prohibits discrimination on the basis of religion.

The lower court distinguished these cake sellers as not discriminating against the religion, just the offensive message, especially because these bakers created other cakes with Bible passages.  But Phillips claims to be doing the very same thing when he argues that he is happy to sell anything to LGBTQ individuals except wedding cakes, which have an inherently celebratory message.  The lower court’s decision must hinge on the idea that same-sex marriage is inextricably intertwined with sexual orientation (and exclusively and predominantly engaged in by a particular class of protected individuals) in a way that certain religious messages are not inherent to the religious status.  This may be right.

Ultimately, I hope the Supreme Court does review a case similar to Masterpiece Cakeshop to provide satisfying answers to these hard questions.  More than that, I hope the politically charged reactions to this type of case are tempered by the difficult line-drawing issues it presents.

In the same vein, I wish there were greater acknowledgement of the nuances presented by the troubling revelation that Vice President Mike Pence refuses to dine alone with women who are not his wife.  His religious beliefs, including the belief in the sanctity of marriage, inspire this loving prophylactic practice, but it treats female coworkers differently than male coworkers and treats opposite-sex relationships as inherently suspect.  I do not think anyone in a position of power should be permitted to behave this way, and am frankly surprised at this antiquated view of male-female interactions, but I find the issue more difficult than many who share this view.

I do not believe, for example, that the behavior must be inherently sexist or expresses the view that women are mere temptresses or objects, especially if Pence’s wife must also comply with the practice of not dining with men.  Both genders are acknowledging that mutual attraction happens and often leads to infidelity.  Mike Pence’s behavior seems silly, to me, and imposes extra burdens on women, but the outrage directed his way elides some hard questions about what spouses should be entitled to decide to protect their marriages, and how much we must put our own beliefs and ideals aside to assimilate to public values.  Many religious practices and beliefs are illogical (that is why “faith” is required), and, to my mind, even hateful, but we protect freedom of religion and conscience to honor an important sphere of freedom.

Both Masterpiece Cakeshop and the Pence policy should be considered with the tough questions in mind.  At some point, many of our views will be denied public acceptance, and at many points, we must balance our private values and expression with the demands of engaging with the public.