Because Cake Is Speech, And Other Stories

Thich Nhat Hanh, in case you did not know this, is a big proponent of what he calls "engaged Buddhism."  Which means that he thinks monks should leave the monastery whenever it's appropriate, go out into the world and do everything they can to relieve suffering.  And that so should the rest of us. While that sounds logical, it was pretty radical in the 1960s, so you can safely call Thich Nhat Hanh a 60s radical.  In fact I think he'd be pleased.  And I think he'd also be pleased to know that my gang of Buddhists, or a small faction of them, anyway, went to Richardson City Hall here in North Texas last Sunday to put together meals for people in shelters after Hurricanes Harvey and Irma.  They were vegetarian meals, just incidentally, and I was in charge of weighing the finished product to make sure it was between 320 and 330 grams. Sounds easy, but it wasn't, actually; especially when the meals were coming at me like an assembly line. I'm so glad I don't work on one of those.  Anyway, together we cranked out 65,000 meals, which is a lot of meals.  Here's a pic of me and the gang in front of a stack of finished product.

I'm hoping that this will be the first of many volunteer thingies we do as a group.  My thoughts are, if you're going to be part of a visible religious body, you sort of owe it to people outside that body to show them what it's all about.  One of the reasons I hung around so long with the Lutheran church in San Diego was that we fed the homeless meals every night, and we had chiropractors and doctors come in to treat people for free, and we had a lawyer who came down and helped people get Medicaid and food stamps, and oh yeah, we had this church over here, too, and if you came by on Sunday you'd hear some pretty good music and maybe learn something, but that's kind of ancillary, you know?  It's about being the message, not just carrying the message.

Speaking of strange messages, the Department of Justice just submitted a friend of the court brief in the infamous "Cakegate" case (which I'll get to in a second) stating that cake, the lovable confection that for me at least is the black tar heroin of the food family, is free speech.  That is, if you make a cake, and you decorate it, and it says something like "Congratulations, Larry" or even if it doesn't say anything and just looks pretty, you have made an artistic statement and you should be free to do so.  Nobody should tell you that you can't make a certain cake (except maybe the Laws of Physics, the inflexible bastards) and nobody should tell you that you must make a certain cake.  In fact,  "...(F)orcing (the cake guy) to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights in a manner akin to the governmental intrusion in Hurley. Colorado has not offered, and could not reasonably offer, a sufficient justification for that compulsion here." Brief for the Department of Justice as Amicus Curiae, p. 8, Masterpiece Cakeshop v. Civil Rights Commission, no. 16-111, Supreme Court of the United States.

The Cakegate case all began one sunny day in Colorado (or hell, maybe it was a snowy day; I don't know) when a couple who wanted a wedding cake sat down with the cake guy at his "cake consulting table" at his business, Masterpiece Cake Shop.  When the couple told the cake guy they wanted a cake for their wedding, the cake guy told them he couldn't do it because of his religious faith and because the state of Colorado (then) didn't recognize same-sex marriages. (Did I mention the couple were two men? No? Okay, the couple were two men.)  And that might have been the end of it, but then somebody's mother got involved (I'm not kidding; the brief actually says this) and the couple ended up complaining to the Colorado Civil Rights Commission, which determined that in fact the couple had been discriminated against.  The cake shop appealed to an administrative law judge, motions and countermotions started flying through the air, and a whole bunch of legal stuff happened that's really not relevant here.  Suffice to say that the case was eventually accepted for review by the Supreme Court, and now the Justices are going to have to decide if cake is speech, or if cake is, you know, just cake.  Now that the Department of Justice has weighed in, though, it gets even more interesting.  Does the Trump administration eat cake? If so, whose? And only if there's no bread, or what, exactly?

Anyway: I'm really on the fence about this case. Restaurants and other places of public accommodation are usually legally prohibited from discriminating against people and/or couples because they are the "wrong" race or interracial, and it seems like that should also apply to businesses like the cake decorator. But on the other hand, some restaurants will turn away patrons that aren't "properly" dressed or who don't have reservations.  Do they have the right to do that? I'm not sure it's ever been tested, but it would sure be interesting.  Also, Bob Jones University won't let you into their art museum, which I've heard is really top notch, if you're a woman, unless you're wearing a dress, presumably because women's asses might distract men (and some women) from the art.  (They have wrap skirts available for pants-wearing female would-be patrons.  I am not kidding.)   Do they have the right to do that? It's a private university and a privately-owned museum, so you'd think they do, but it's also a "place of public accommodation," so maybe they don't. If there's ever a legal case about this I suggest we call it Skirtgate.

Also, I want a right as a business person and as an individual to turn down a job I don't want to do. Maybe I'm discriminating against you because you're a cake-wielding asshole, but also maybe because you're ugly and I don't like your suit.  I'm also a Buddhist, in case that's not screamingly obvious, and because of my faith, I wouldn't work for a company that, say, made weapons or championed the death penalty. (Yep, the DA's office is Right Out.)  If I were a private contractor and I made my living writing legal briefs for people, I'd want to be able to turn down a gig from the DA's office or some company that made weapons, if I knew about it.  I probably wouldn't tell them it was religious, though. I'd probably just say I was totally swamped right now and couldn't get to it.

Which leads to another interesting question.  If Cake Guy had told our couple that he was swamped and couldn't do their cake, would we even be having this conversation? I'm not saying that he should have said that, if he felt like he'd be lying, but what if you genuinely are swamped and you genuinely can't get to the project, whatever it is? Would you have to prove that in court?  I can see it now; Cake Guy and his lawyers carefully balancing the other seven cakes Cake Guy had to make that week on the way through security to get to the courtroom.  Oops, dropped one.  What a mess.  Get one of the security sniffer dogs.

So I don't know how I feel about this whole Cakegate thing.  I can see, however, that depending on how the ruling is written, it could be catastrophic for either A. people's individual rights or B. the rights of other people not to be discriminated against in public.  Sounds like a pretty delicate juggling act.  In case I haven't said it lately, I'm so glad I'm not on the Supreme Court.  If I were, I'd have to throw this ruling out of the airplane as I left the country for somewhere like Sweden, where same-sex marriage has been legal since 2009 and there's universal health care, besides.