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To Bake or Not to Bake, Nazi Cakes [1]

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Date: 2023-02-07  

That is the question. Along with Plan B….

How do we balance individual rights with the marketplace of ideas and free association, and at the same time avoid prejudice and division?

The Supreme Court faced this issue in Masterpiece Cake [2018] (where a baker, citing his religious beliefs, refused to decorate a cake celebrating a gay wedding) and this term [2022] in Creative (ditto, with a nuptial’s web site).

The Chicago Trib [2017], like many conservative commentators supported the religious “freedom” argument by raising the specter of a white-supremicist demanding a holocaust survivor bake a Nazi-themed cake.

My guess, if a Proud Boy ordered a holocaust survivor to decorate a cake with a swastika, they’d calmly reply “So nu, after surviving two years in a concentration camp and a lifetime of prejudice, you think a little cake decorating is a threat? Cash or credit?”

But not all bakers would share his resolve.

Conversely, the internet is rife with liberal analogies, like this:

Cute, but the analogy is inappropriate, at least according to SCOTUS. Unlike cake decorators, mail carriers are not members of the “creative” class.

The Supreme Court in its rulings and oral arguments, appears to be drawing a line between “creative expressions” and routine actions. Is designing a cake or an online wedding album a form of protected speech? Then, on First Amendment grounds you cannot be “forced” to speak. Or, by the 14th amendment, to act — forced speech and mandatory labor is a tantamount to slavery.

Since mail carriers are performing a neutral, uncreative activity which (even if they disagree with the consequences) is part and parcel of their job description, “slavery” is not an issue. Nor speech. So an anti-abortion church-going-mail-carrier should gracefully deliver a Planned Parenthood advertisement, despite the fact it might facilitate an abortion.

Settled? Not really. The Supreme Court cannot avoid tripping on its own judicial robes.

If we apply the identical logic of Masterpiece retroactively to Stormans [2016] (replace “baker” with pharmacist, and “cake” with contraceptives), the case was incorrectly decided and subsequently turned into state law. Pharmacists are like mail carriers, merely delivering pills from a storage shelf to a bottle and bag, ergo they must (by the reasoning in Masterpiece) fill prescriptions for Plan B despite any religious misgivings.

Curiously, one proposed remedy in Stormans was deference to the pharmacist’s religious value system by offering the customer “delivery” via an alternate pharmacy or pharmacists. But that customer’s inconvenience (alternate pharmacies are sometimes an hour’s drive away, or at a higher price, or the delay causes medical harm) is a poor application of the balancing test. The pharmacist should deliver the medicine. Just like the postal service delivers mail.

Apparently “creativity” is not a crisp legal dividing line. The only common thread is a creeping theocratic bent on the Court.

We live in a complex, pluralistic society. The glue that binds our democracy together is mutual tolerance for others, even those we find abhorrent. These incidents will fade away once we stop insisting that others adopt our personal value systems.

The Supreme Court is creating bad law.

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[1] Url: https://www.dailykos.com/stories/2023/2/7/2151680/-To-Bake-or-Not-to-Bake-Nazi-Cakes

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