Jack Phillips works on an elaborate wedding cake at his business, Masterpiece Cakeshop, in Lakewood, Colo., in 2014. Phillips refused to make a wedding cake for a gay male couple. That eventually led to a case before the U.S. Supreme Court. (Matthew Staver/The New York Times)
Photo: MATTHEW STAVER
Photo: MATTHEW STAVER

Kempner: Dumping Rebel flag business not same as same-sex wedding cake

The nation’s highest court didn’t solve the gay wedding cake controversy. So I asked Steve Cook to.

It was an unfair request. He’s not a legal scholar. He’s a Tucker business owner who, like the Colorado baker at the center of the U.S. Supreme Court’s recent case, refused to accept business that would violate his deeply held convictions.

I met Cook three years ago, after I learned he had quietly decided to halt production of Confederate battle flags at the flag and banner making company, Atlas Flags, that he had bought a year earlier.

“For me, it didn’t stand for the right things,” he told me then about the ornery “X.”

I called him recently to talk about a big case involving a baker in Denver’s suburbs who cited religious and freedom of speech grounds for refusing to create a wedding cake for a gay couple.

Cook knew some of the basics of the case. His preference was to attempt to find a way for all sides to essentially have their cake and eat it, too.

“Society would become much better for everyone if we learned to get along and understand our differences,” he said.

In a nation that at its most glorious is supposed to value freedom for all, curbing one person’s freedoms at the expense of another’s is the most uncomfortable contortion we put ourselves through.

Businesses wade near such challenges more often it seems.

Increasingly leaders of big and little operations take stances on sensitive cultural, moral, social and political issues. List enough of them, and people are bound to find some they can agree with and others that make it feel as if their pants became too tight.

Where, for example, were you on the recent stir when the owner of the Red Hen restaurant in Lexington, Va., asked White House press secretary Sarah Huckabee Sanders to leave because of her political actions?

Another happened six years ago, when two men entered the Masterpiece Cakeshop in Colorado to order a cake to celebrate their upcoming marriage.

They never got to describe what they wanted. Shop owner Jack Phillips said he wouldn’t make a wedding cake for a same-sex wedding.

It’s odd to think of cake icing as a cultural breaking point and a reason for a rift between people. But Phillips considers his cakes works of art and ways to glorify God.

“I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings,” he told the couple, according to court records.

Most of us don’t know Phillips personally. But it is certainly possible — probably even likely — that his stance was not predicated on hatred for people unlike himself. If he is a true believer, I don’t imagine him relishing ruining what otherwise should be a joyous time for a couple that chose to support his business.

Unlike Georgia, Colorado has a state law banning discrimination in public accommodations based on sexual orientation.

Discrimination is exactly what happened: Phillips would make wedding cakes, just not one for people who are gay.

The U.S. Supreme Court ruled 7-2 for the baker, but focused narrowly on a state civil rights commission showing “impermissible hostility” toward Phillips’ religious beliefs.

The decision didn’t settle whether business owners opposed to same-sex marriage can legally refuse to provide products and services for such weddings.

(The court did rule that “laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights,” and court precedents allow that the baker “might have his right to the free exercise of religion limited by generally applicable laws.”)

Cook, the Tucker flag maker, wondered why the Colorado case ever got so far.

“What if they had said we want a “union” cake? Maybe he would have made it.”

He told me if he was a baker, he probably would have made the wedding cake. He’s often made rainbow flags.

Still, he said he understood Phillips’ position: “He should have the right to protect his beliefs.”

Just as Cook dropped the Confederate battle flag and refused to make a flag with a swastika, a risk he said he should be able to take as a business owner.

“We are a free-market society. The market can determine whether this person will succeed or fail,” Cook told me. “That’s what I thought the checks and balances are supposed to be.”

Of course, there’s also an important distinction with the Colorado cake. Cook’s refusal to make a particular flag apparently wasn’t tied to the customer’s race, gender, nationality or sexual orientation.

As a society, our country has gradually come to the conclusion that discriminating against those groups isn’t who we want to be.

That work isn’t done.