Just Bake the Stupid Cake?

Once, in a fit of optimism that anyone who knows me can testify is not natural to me, I baked a cake.

Having printed out elaborate instructions from the internet and arrayed various pieces of equipment and ingredients across every inch of the ample counterspace in my apartment kitchen, I set to the task with gusto and soon was complimenting myself on the discovery of new talents, like fishing bits of eggshell out of a mixing bowl with a fish fork.

The profanity that filled the kitchen that evening was worthy of a Quentin Tarantino script, and indeed the scene before long looked like not unlike a mash-up between a Pillsbury Doughboy commercial and one of the Saw movies. The flour strewn everywhere was, I aver, more than had been in the bag to begin with; and I hope this miraculous event - the multiplication of the loaves redux - is noted in my hagiography one day.

Several hours later, the fruits of my labor sat on my countertop: a messy and knife-gouged lump of chocolate smeared with a watery mess of icing that had run down the sides and pooled around it like a moat.

It tasted wonderful.

Better than mine.

All of this is by way of setting up a resume of my adroitness in the confectionery arts. Noting this experience, and combining it with my regular viewing of Food Network, you can basically say I'm an expert.

Silence, then, to those critics who would say I lack the qualifications to comment on the matters I wish to address in this post. (Incidentally, as regards the other subject matter implicated - same-sex marriage, religious liberty, LGBT rights, and moral concerns - you might also say that I have earned the right to speak with some authority, perhaps even more deservedly than in the former matter.)

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So, first things first: if you've been living under a rock lately, you might not have heard about Indiana's RFRA, in which case you won't understand some of what's to follow. Here's a piece about it. Tolle, lege.

Now, let me assure you: we're not going to go down the rabbit hole on this one on this Easter Monday morning, so breath easy. No; I want to only address one particular aspect of this matter.

As the Indiana kerfuffle began to boil over and the internet lit up over it, I tried my best to follow all of the various opinions. Some of it has been downright surreal, as in the case of Memories Pizza. Or in the case of my overhearing, from the TV playing in the background yesterday morning, ESPN commentators deciding to speak about it because #MarchMadness has some tangential connection to the matter. They wanted to assure everyone that the most insightful things said about Indiana so far (they weren't kidding, they were really claiming this) have been said by Charles Barkley.

This guy.

The issue is complex, to say the least. It'd be impossible to deal with everything it entails in a single post. I'll admit up front that I think the handling of the matter by the Indiana legislature and the Governor has not been very adept. But it should also be noted that the media has spun it out into a hysteria and actively silenced saner voices.

But as I said, I want to address one particular facet of this issue. On social media, at the height of the hysteria over the Indiana law, I found some commentators lamenting that we were fighting "the wrong battle." We'd chosen the wrong hill upon which to take a stand in the very important fight for religious freedom, because the case-in-point plays so poorly in the media, they explained. At the end of the day, there are bigger fish to fry.

The hypothetical used is of the wedding cake baker. In this scenario, a Christian business owner is approached by a homosexual couple and asked to bake them a wedding cake. The business owner feels he or she cannot do this in good conscience, believing that marriage is a sacred institution and solely the union of one man and one woman, and so declines service.

The Indiana RFRA is supposed to protect a business owner in such a case from facing legal action for discrimination. It does not (as some have claimed) make discrimination legal and allow a business to turn someone away solely on the basis of their sexual orientation or gender identity.

But I was shocked to see several people who themselves believe in the Christian meaning of marriage and in the value of religious freedom attacking this hypothetical business owner for foolishly provoking a fight they didn't need to fight. The upshot of their criticism was this: there is no "there there," in a moral analysis of the situation. Your religious freedom is not being infringed upon; your conscience needn't be troubled. In short, they said, to the Christian business owner...

Just bake the stupid cake.

The ensuing discussion on Facebook threads and in comboxes was a casuistic analysis of the moral situation and the requirements upon an individual regarding material and formal cooperation in evil. According to the analysis, these same commentators found that there was insufficient proximity in the whole affair to require the Christian to demur: simply baking a cake, they argued, did not constitute a participation in sacrilege or sin. The baker wouldn't be affirming homosexual acts that the Bible deems wrong; he or she wouldn't be lending a formal witness to the redefinition of marriage. The individual would be morally in the clear to simply provide the service and wash their hands of the matter.  And to draw a line of protest unnecessarily upon the point would be imprudently provocative, it would be rash and foolish. Scripture calls us to be wise and serpents and innocent as doves, and in this case one would be neither. Underlying it all, albeit perhaps unsaid, was the assumed premise: It's just a stupid cake. No bid deal.

It's just a stupid cake.

Accordingly, the conversation along these lines prescinded from addressing the substance of the Indiana RFRA and the question of whether it was good law. That may be the case, it was admitted. But it was a lamentable fact that the go-to hypothetical scenario was an unnecessary confrontation and put us on a weak footing right out of the gate. The dramatis personae made for a bad story. The couple were automatically the sympathetic victims; the business owner the antagonist, and a scrupulous worry-wart who was embarrassing us all, dammit.

Well, I disagree. What I want to argue is not only that this isn't a bad battleground whereupon to make a stand, but that it indeed may be ideal - if approached correctly - for convincing moderates and those who disagree very much with Christians regarding sexual orientation and gender identity issues or the definition of marriage. The religious liberty sphere provides a great meeting place to find some common cause with people from various sides of the other areas of contention, and "the butcher, baker, and candlestick maker" set-up might be the ace-in-the-hole, rather than the losing off-suit card that kills an otherwise respectable hand.

In order to argue thus, I want to get out of the realm of the hypothetical and take a concrete case instead as the starting point: the case of Masterpiece Cakeshop. The case involved baker and business owner Jack Phillips of Colorado. The Alliance Defending Freedom, who represented Mr, Phillips in his litigation, describes the gist of the case in this way:

Two men filed a complaint with the state of Colorado after a cake artist declined to use his artistic abilities to promote and endorse their same-sex ceremony even though other cake artists were willing to do the job.

The couple that sued Mr. Phillips (whom one of the pair compared to a Nazi, because #tolerance), won a decision in front of the Colorado Administrative Law Court in December of 2013. The defendant was fined, ordered to "cease and desist from discriminating against [the plaintiffs] and other same-sex couples by refusing to sell them wedding cakes or any other product [he] would provide to heterosexual couples" and was issued by the Colorado Civil Rights Commission a mandate for "re-education" of himself and his employees. (It was later revealed that a member of that same Commission likened Mr. Phillips to a slave owner and a Nazi on the basis of the fact that the institution of slavery and the Holocaust were "situations where freedom of religion has been used to justify discrimination" - which is ironic, because, first of all, well, not really, and also because on the basis of such a tenuous connection one might easily make a similar comparison to Commissions that hand out "re-education" mandates... but I digress.)

Reading the Administrative Law Court's decision in December of 2013, I was struck by one particular finding by the Court in explaining its rationale for ruling against Phillips - and this is the important point on which I will base my argument:

The undisputed evidence is that Phillips categorically refused to prepare a cake for Complainants' same-sex wedding before there was any discussion about what that cake would look like. Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. After being refused, Complainants immediately left the shop. For all Phillips knew at the time, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding. Therefore, Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious. The act of preparing a cake is simply not "speech" warranting First Amendment protection.

Now, note first of all that this part of the decision has nothing to do with a claim on the basis of religious liberty. It has to do with Phillips' defense on the basis of another First Amendment right, the right of freedom of expression.

Second of all, note that the Judge's reasoning here seems to have the same basic premise as the commentaries noted above: it's just a stupid cake.

This is the substance of my contention that this case is far from an embarrassment to the cause of religious liberty and that it is, on the contrary, a potential meeting place for those who disagree about the deeper issues: This part  of this decision sets a dangerous precedent that should make all of us - gay and straight, liberal and conservative, agnostic or religious - cringe.

The court here has set itself up as the arbiter of what constitutes artistic expression in the exercise of a craft. (Incidentally, if we don't want Courts doing that kind of arbitration, a fortiori we do not want Courts deciding what is "real" religion or not - something which the most liberal of the Judges on the present Supreme Court has also noted.)

I baked a cake once. A lot of effort went into it. I won't be histrionic and say "blood, sweat, and tears" went into it - but then again, I won't say either that it was a very good achievement in the field of cake-baking.

But watch Food Network's "Cupcake Wars" sometime. Watch any show with Duff Goldman on it. Watch any culinary T.V. show, for that matter, or simply go out to eat at a nice restaurant once in your life. And then try to tell me that this isn't an art and a legitimate form of expression.

One of the great ironies is that this decision was celebrated by the ACLU and by liberals throughout the culture and media. One would think that a liberal would be the first to protest, though, at hearing a judge say to a baker of his finely-honed craft, in effect, "It's just a stupid cake."

"But," some may object, "this is mixing apples and oranges. The Judge makes the very point that the baker denied the couple outright and the question of the artistic elements of the cake hadn't even yet been addressed."

And I call B.S. Walk into a Michelin star restaurant sometime and ask for a replica of a Big Mac. Ask them to make sure to duplicate it exactly, with wilted lettuce, a semi-soggy bun, grade F beef, bland sauce, soft onions, and the whole works. See how that goes, and when they object, protest: "C'mon, man, it's just a @#%$ing burger." That's about the sum of what's happening when a baker specializing in event cakes who pours his artistry into every project can be compelled to bake "a non-descript cake" suitable for any purpose.

In fact, thought, the cake that would've been demanded in the end would've almost certain been recognizable as a wedding cake. Thus, the Judge's point seems to amount to saying that, "It wouldn't necessarily have been recognizable as a gay wedding cake" - and the Judge seems to think this is the rub. Well, yes, it is, in fact, the rub - but not in the way the Judge intended.

The Judge's own reasoning undoes itself: if the cake is "a nondescript cake that would have been suitable for consumption at any wedding," then it's a wedding cake; and if the man is forced to make a wedding cake for use at a same-sex wedding, then how can his making that cake not be seen as an act of recognition of same-sex marriage?

All of this is ultimately beside the point, though: the point being that a Judge is here setting himself up to dictate to an artisan what constitutes that artisan's "expression" in the exercise of his craft.

What prevents this model from extending to other scenarios one would think should fit under protected First Amendment freedoms?

• You're a baker? Just bake the stupid cake.
• Are you a wedding singer? Just sing the stupid song.
• Are you a composer who writes custom tunes for the bride and groom to dance to at their reception? Just compose the stupid tune.
• Are you a writer or poet or dancer or practitioner of any of the sundry arts that routinely become involved in the celebration and solemnization of a marriage? Just do that stupid thing you do.

This is the question, then, for those I saw on Facebook and elsewhere taking the stance that the cake here was not a formal and material cooperation in anything illicit and that this was the wrong battleground for a fight: If you will say to the baker, "just bake the stupid cake," then you must say it to these others as well. Are you prepared to do that? 

Finally, let me address one last possible objection. It may be urged that I've pulled a bait and switch. The issue at hand in the Indiana RFRA is not a freedom of expression claim, but a claim about the rights of conscience and the exercise of religion.

In answer to that, I will make the observation that really was the first thing that troubled me when I saw the "bake the damn cake" stance first being taken: Is it really a good idea to compartmentalize "religion" any more than we've already done, especially in a culture that seems to want to squeeze it further and further from public life?

I baked a cake once in my life, and though I may have been swearing oaths at times during the proceedings, I will admit that I can't say the experience didn't constitute an exercise of worship for me. But that doesn't mean it can't be - or that it shouldn't be. In fact, all things considered, it probably ought to be the norm, rather than the exception, that when a butcher or baker or candlestick maker goes about his or her work, that it is done as an act of prayer, as an offering of one's talents back to the Lord, as a means of worship to sanctify daily life and to give greater glory to the One who gives us these talents in the first place. 

He who bakes prays twice?

G.K. Chesterton once wrote: 

You say grace before meals. All right. But I say grace before the concert and the opera, and grace before the play and pantomime, and grace before I open a book, and grace before sketching, painting, swimming, fencing, boxing, walking, playing, dancing and grace before I dip the pen in the ink. 

He probably would've said grace before baking a cake, too. And how right. This, to me, fits in with the spirituality of that great prayer by St. Augustine:

Breathe in me, O Holy Spirit, that my thoughts may all be holy. Act in me, O Holy Spirit, that my work, too, may be holy. Draw my heart, O Holy Spirit, that I love but what is holy. Strengthen me, O Holy Spirit, to defend all that is holy. Guard me, then, O Holy Spirit, that I always may be holy.

It would seem very difficult, for one truly living this prayer, to "just bake the stupid cake."

Bottom line is this: I don't want to live in a country where a judge, or anyone else, can tell me that the song I sing is just a stupid song; or that the prayer I pray is not a true prayer; or that anyone - ever - for any reason - who has talent and skill and artistry to bake and decorate cakes such as I can only dream of having, and who dedicates these services to the Lord as a return for the gifts He has bestowed, should ever be told - under penalty of personal financial ruin and the assassination of their character - that they should "just bake the stupid cake."