There is a big brouhaha going on right now over the latest Supreme Court decision. A baker in Colorado named Jack Phillips was accused of discrimination when he refused to make a wedding cake for a same-sex wedding couple.
The baker refused because he claimed that making the cake would go against his orthodox Christian beliefs, which he believes forbids gay unions. Notice I wrote he refused to “make” a cake and not “bake” a cake.
Let me explain the difference in this very unique case.
The Supreme Court’s ruling was 7-2 in favor of the baker after five years of court deliberation and appeals. But the court was also cautious not to tread on gay rights at the same time — delicate tightrope decision.
The Supreme Court determined that Mr. Phillips could not be compelled to “design” a cake on demand. Justice Anthony Kennedy wrote the opinion stating that the baker cannot be compelled or forced to “use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and his own creation.” Note the words that the court used, “artistic skills,” “expressive statement” and “his own creation,” when referring to Phillips.
So what does this really mean? Well of course the mainstream media and just about everyone else in America took it to mean that this was a matter of “freedom of speech.” Both liberals and conservatives jumped on their free speech soapboxes to chastise each other on the court’s decision.
But it wasn’t a case of freedom of speech at all. In truth, the case narrowed down to “freedom of expression.” There’s a subtle difference. An artist cannot be forced to make art that he or she doesn’t want to make — for any reason. The Supreme Court had to be very careful here not to rule in too broad a sense. It had to protect well-established gay rights and also freedom of artistic expression – both inalienable rights.
But as soon as the ruling came down, fur started to fly. It is frustrating to no end when both sides of an issue don’t get it and stupidly argue until blue in the face.
First. The baker, Mr. Phillips, did not discriminate against the gay couple coming into his shop to purchase something as some media people are claiming. Phillip’s lawyers argued successfully that the couple could have bought anything in the shop offered for sale — anything in his bakery.
However, what the baker did was to refuse a “commission” to use his “artistic skills” and “create” a cake specifi ally designed for the same-sex couple. He denied them his intellectual property as an artist. The Supreme Court said the baker had the right to refuse the commission.
Second. Mr. Phillips, as an artistic designer of cakes, owns his intellectual property as an artist, not a baker. He refused to “design” edible artwork for the gay couple because he opposed the design that he was asked to be commissioned. Result? 7-2.
So, what exactly is intellectual property? I’ve lectured on this very subject to graduate students and faculty at UGA in the performing arts and in the comparative literature departments.
Simply defined, intellectual property, or IP, is “creating something of value, which never existed before, using common elements and owning it.”
It’s a “copyright,” and the baker’s cake design, as determined by the Supreme Court, is his copyright and artwork — his “expressive statement.” He can sell it, or not, as he pleases. The baker, or anyone else, cannot be compelled to “create” something on demand. He had the right to say “no” for whatever reason — religious or otherwise.
By simple example, say a painter makes her living painting exotic songbirds in flight and takes commissions for new paintings. Someone asks her to paint two songbirds in the talons of a hawk flying away with the songbirds as its lunch.
The painter refuses to paint that scene because it goes against her “artistic” or “religious” beliefs about songbirds. No one can force her to “create” that painting even though she is in the business of selling songbird paintings. Am I reaching you media folks on soapboxes out there?
So, Mr. Phillips is now free to design whatever cake he pleases as a commission without being told that he must.
Still, I wonder what flavor cake he sells best? Solely as a baker of course.
Pisano is a writer and lecturer who lives on Ford Plantation.