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Folks, we need to talk about Masterpiece Cakeshop. Or as it’s more commonly known, the pending U.S. Supreme Court case about “can a bakery refuse to make a cake for a gay wedding.”

Yesterday I saw a lot of my liberal-feminist-LGBTQ-Mormon-affiliated-type-friends posting in horror that the Church of Jesus Christ of Latter-day Saints had signed onto an amicus brief in support of the baker. The same Church that had extended the olive branch to the Provo LGBTQ benefit concert last month now seems to be committing another act of political betrayal. It stung. The inconsistent messages, the never-ending barrage of hurt, the continued policies of exclusion, they’re maddening. I don’t dispute that.

But this brief is not in the same category. (Even if I quibble with some of its points and wording.) It was written by Douglas Laycock, who is an insanely well-respected non-Mormon scholar of religion law. Page two of the brief calls out LDS Church support for legislation “prohibiting sexual-orientation discrimination while providing religious exemptions.” It then emphasizes that Prof. Laycock vigorously supported Obergefell – the 2015 Supreme Court decision which held all bans on same-sex marriage to be unconstitutional.

Now, I’m a First Amendment maximalist. When I say that, I mean that I love all the clauses equally. Free speech and free press, free exercise and the Establishment Clause, and the oft-forgotten petition and assembly. They all matter. They’re all fundamental. But sometimes the First Amendment Clauses yell at each other. Sometimes a thorough analysis leads to counter-intuitive results. Sometimes you have to protect a viewpoint you hate, in order to also protect the viewpoints you cherish.

In Masterpiece Cakeshop, the baker has set up a delightfully complex web of competing facts that make the First Amendment analysis exceptionally difficult. He is not claiming a general right to refuse service to LGBTQ individuals. He is fine if customers buy off-the-shelf cookies and pies, or ask him to custom-make birthday cakes. What he is uncomfortable with is designing a bespoke wedding cake to celebrate a ceremony that violates his religious beliefs.

Reasonable people can, and vigorously do, disagree about the best result here. The custom-made nature of the cake is, in my view, hugely significant. Precisely because the Constitution forbids slavery, an enormous body of law says you can’t force people to perform “personal services” against their will. And inherently artistic, subjective, client-focused, highly-tailored services? Things like photography and painting and cake decorating and wedding planning? They’re the epitome of that body of law. You can turn down customers for a million reasons in these fields – should a religious disagreement really be any different?

If the state is going to require personal services to not “discriminate,” it has to be consistent on what “discrimination” actually means. There’s evidence that Colorado was perfectly happy with bakers who refused to make cakes for anti-gay events, but then punished bakers who refused to make cakes for pro-gay events. The First Amendment doesn’t permit the State to have it both ways.

There’s a core “freedom of conscience” principle that criss-crosses the First Amendment, although the exact analytical approaches vary. I personally think the baker’s best argument is grounded in free speech. Doug Laycock, on behalf of the LDS Church (and others) makes a compelling argument why the best argument is grounded in free exercise of religion. And the State of Colorado and others – their briefs are coming later – have strong arguments as to why anti-discrimination laws should prevail here anyway. There’s a reason SCOTUSblog is running a massive symposium on this case, and various constitutional law forums I’m on are spinning themselves into circles trying to unpack this puzzle. It’s a mess.

Almost every opinion in this mess is valid. Frankly, I’ve never even made up my own mind; I keep changing it whenever I read a new legal argument. But whatever side you personally come down on, let me pose just one hypothetical scenario.

A neo-Nazi walks into a Jewish bakery in Charlottesville, VA. He’s planning a rally in front of Robert E. Lee’s statute and wants to supply themed snacks for his guests. A bunch of his friends from his church are coming, and he intends to start off the rally with a prayer for God’s favor in returning to the purer days of America. So he asks the bakery owner to custom-make chocolate-covered shortbread cookies, shaped like swastikas. Can the Jewish baker refuse?

Your answer to that question should be the same as your answer in Masterpiece Cakeshop. If its not, have fun coming up with an exceptionally good – or at least intellectually consistent – reason why not.

UPDATE: To more directly address the “Protected Class” distinctions, try this hypothetical, too. The Jewish baker has discovered that there are so many cultural festivals in his city, there is a high-demand for sugar cookies decorated like various cultural symbols and flags. One day, a Persian walks in and asks for custom Palestinian and Iranian flags. Can the Jewish baker refuse?

*Photo Attribution: Chris JD pursuant to a creative commons license on Flickr.