Well, that didn’t take long.
Jack Phillips, the owner of Masterpiece Cakeshop, is back in the news and headed back to court. Backed once again by the Alliance Defending Freedom, Mr. Phillips is suing the State of Colorado over a ruling of the Civil Rights Commission that he violated the civil rights of a transgender person by refusing to sell her a cake. The Washington Post published a story in its Business section yesterday: Colorado baker: No cake for gender transition celebration.
The Post states that Phillips’ lawsuit cites his belief that “the status of being male or female … is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed.”
Yes, Mr. Phillips is arguing a religious belief in a human attribute that is God given, scientifically determined, and unalterable. Phillips argues for a black-and-white, male or female world where you’re one or the other at birth, forever, no matter what.
Mr. Phillips may believe all that, but the assertion that sex/gender cannot be chosen or changed and that it is unaffected by perceptions or feelings is demonstrably false. How, after all, would Phillips’ have known the sex (or transgender status) of his customer if she had not revealed it?
Why is any of this a matter of religious freedom?
As sketchy as it was for Phillips to have claimed in his earlier lawsuit that the State of Colorado had infringed on his freedom of religion in the matter of a cake for a same-sex couple’s wedding reception, he prevailed — not because his actions were beyond reproach but because the State (according to the Court) had betrayed a bias against him.
The Supreme Court sidestepped the thornier issues of whether a cake shop owner can refuse to accommodate a same-sex couple on religious grounds and chose instead to focus on the words and actions of the Civil Rights Commission. The Court said that the government had acted unfairly against Phillips in attempting to enforce Colorado law.
This time, perhaps, the courts will find it necessary to address larger questions, such as whether a business owner can refuse service to anyone for any reason whatsoever and then claim that doing so is protected as free exercise of religion.
Does a business owner have a right to deny public accommodation based on the customer’s identity or perceived identity?
The answer is, and must be, no.
Businesses cannot arbitrarily serve some customers and refuse others, protected by some all-encompassing cloak of religiosity. Otherwise, “freedom of religion” is, in effect, license to discriminate — an unrestricted right to decide who gets favorable treatment and who doesn’t. It would be a system which favors those who are already privileged and disadvantages all others.
We’ll see if the courts can get it right this time.