“Phillips told the couple, ‘I’ll make your birthday cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings’…It is hard to see how this statement stimatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say ‘God Hates F**s’ [asteriks added]–all of which this court has deemed protected by the first amendment” (Masterpiece Cakeshop, LTD, et al. .v. Colorado Civil Rights Commission et al., Thomas 13).
This quote comes from the concurring opinion of Justice Thomas. He agrees with the court and other Justices that Mr. Phillips’ religious rights and right to freedom of speech were being impeded by the Colorado Civil Rights Commission. He emphasizes how making a cake might be seen as an expression of speech, and how “states cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified” (Thomas 12).
When I read this quote, I immediately wrote in the margins: ‘declining to make the cake is still very stigmatizing because it refuses to validate/accept their human right to marry. It makes LGBT folks less than human.’ I felt that all of the other things listed, while perhaps more aggressive, also contributed to that dehumanizing practice even if they had not been challenged at that point. Reading it all again, though, I grow more and more frustrated by the implication that people are not only allowed to be cruel, but that they have legal protection to be cruel.
I understand why freedom of speech exists. For me to be able to say what I believe means that those opposing me should get to say what they believe. I also understand the context in which that right was established: because of oppressive governing forces. But I’ve always said that ‘freedom of speech doesn’t give you the right to be a jerk.’ Yes, people can say what they want, but they shouldn’t be shocked or offended to learn that others were hurt by that. They shouldn’t hide behind that phrase like a shield. Unfortunately, though, it is a shield in many ways. It’s a law. A constitutional right.
There are certain groups who face more harm inherently than others. It’s for this reason that one of the ethical principles of social work is social justice. We are compelled to focus on vulnerable populations first and foremost, not ever contributing to the issues they face. Maybe we aren’t allowed to police people’s opinions, but if that opinion is very intentionally attacking one of those vulnerable groups, shouldn’t there be consequences for that? And it isn’t always words themselves, either. Mr. Phillips may not have said anything outwardly offensive, but he was contributing to stimaticization and discrimination. Denying them service for this cake, even if he was willing to sell other products, is undoubtedly not free speech but discrimination.
We’ve talked a lot about cancel culture, saying that simple statements shouldn’t necessarily land people in jail. I’m not condoning it by asking for greater protections for marginalized individuals in day to day life. For perhaps some amendment or law that prohibits that active discrimination. I know this case happened in 2012, and that it has been eight years since then. Changes have happened. Yet ‘freedom of speech’ defenses are still going strong. I also know that people can be educated, that people can learn and change after saying or doing something offensive. I just struggle to use that reasoning to justify turning a blind eye to incidents like these, were discrimination is clearly still taking place in our society.
How do we find the balance between protecting vulnerable groups and allowing people to express opinions or assert their own rights?
Class discussion and impact:
My contributions: I spoke quite a bit. After giving the summary about the case, I brought up a piece of evidence throughout the opinions of the other court decision. I talked specifically about how it made me uncomfortable to compare those cases because they seemed similar but were different. I shared my QCQ and my issues with free speech, gave a footnote from the text as an addition to a comment, and finally examined intent in all this and whether or not that justified ruling in favor of Phillips.
Others’ contributions: Jack spoke right away about how the court seemed a bit hesitant to make a concrete declaration, going back and forth between saying same-sex couples have rights and that religious people do a swell. Maeve spoke a bit, discussing how technicalities and opinions can change the course of a case, as well as the importance to making it through a court document so as to learn about other cases. Anna also mentioned intent and meaning, as well as finding a balance between those technicalities and reality.
This was a good final discussion in that we got to take our thoughts on justice and apply them to a legal example. There wasn’t a ton of talking (I normally fill up two pages of notes and only had one today) but the ideas shared where important. In particular, how it is important to be knowledgable about other cases and citing them in opinions, and what intent in a given case truly is and whether or not it matters. I challenged myself to be more aware of others’ opinions that I disagreed with, and with this case that was difficult because I definitely sided more with Ginsburg and Sotomayor and they were in the minority. But going through the other opinions more carefully I can see what they’re trying to say as well.