21 Dec

Same-sex weddings now baked in the cake

It’s the holiday season, and the air is full of baking. Magazines are thick with Christmas cookie recipes, the hot urban trend is the donut boutique, and Oregon’s booming marijuana tax revenues suggest that the whole state is getting baked.

And the Supreme Court is talking cake.

The court’s unusually layered proceedings earlier this month addressed the case of Masterpiece Cakeshop, a Colorado baker who cited his religious beliefs in refusing to create a cake for a gay wedding – an episode closely resembling Oregon’s own Sweet Cakes by Melissa case. The Oregon proprietors were fined $135,000 by labor commissioner Brad Avakian, and their appeal is now before the Oregon Court of Appeals. When the Supreme Court swings its own rolling pin on the issue, it could set the pastry precedent.

The Oregon argument has been largely about religious freedom, and whether you can be obliged to bake a cake for an event you would refuse to attend. The Supreme Court argument was largely about art.
You might rather have judges talking cake.

Religious freedom did feature in the Masterpiece case. But the Colorado baker argued strongly that the controversy was an issue of freedom of expression, that he was an artist who expressed himself in his cakes, and that the government could not tell him what to say, in print or in buttercream.

Masterpiece Cakeshop’s attorney, Kristen K. Waggoner, said her client was an artist who creates “a temporary sculpture” when he makes a wedding cake. Slicing the argument even thinner, she declared that her client would have no problem with a gay couple coming into his shop, buying a cake off the shelf and using it as a wedding cake; it was only creating a custom wedding cake that cut across his artistic freedom.

And while other legal cases have treated bakers’ concerns as similar to those of florists or photographers who might want to send regrets to a gay wedding, the Colorado claim saw the baker as distinct from the candlestick maker. While the baker has rights of expression, argued Waggoner, “the tailor is not engaged in speech, nor is the chef engaged in speech.”

Justice Elena Kagan gagged on the distinction. “Whoa,” she said. “The baker is engaged in speech, but the chef is not engaged in speech?”

Because if a wedding cake is covered under religious liberty, the next demand will be to free the finger sandwiches.

It was all too much for Justice Sonia Sotomayor.
“When have we ever,” she asked, “given protection to a food?”
The artistic expression argument might have particular force in Oregon, where the law takes an expansive view of expression and its protection – the reason Oregon has a planet-leading number of strip joints per capita. On the other hand, nobody’s suggested that a strip joint’s freedom of expression would let it refuse to book a same-sex wedding’s bachelor party.
Or deciding what to serve.

The constitutional cake controversy may raise a fundamental issue, or it might just be a marker of where we are in the same-sex marriage process.

During the debate over the 1964 civil rights act, and in some later debates, legislators agonized over “Mrs. Murphy’s boarding house,” and Mrs. Murphy having to accept boarders she didn’t like into her small, personal space. Fifty years later, we no longer hear much about Mrs. Murphy; maybe she’s retired to an Arizona gated community with a golf course. Now we just assume that discrimination in places of public accommodation is illegal, even to Donald Trump’s Justice Department.

The American public’s attitude toward gay marriage has changed faster than the public image of Bill Cosby. In 2004, George W. Bush ran for re-election in a crusade against gay marriage – it was better than running on the glory of the Iraq war – and a dozen states, including not-quite-as-cool-as-it-would-later-be Oregon, enacted constitutional amendments outlawing the idea. In 2016, with 42 Republican candidates for president, none of them stressed rolling back gay marriage, and several of them even seemed willing to serve as ring bearer.

In a season that’s largely about family gatherings – and, of course, baking—we have nationally reached the understanding that families come in lots of different shapes. Last week in Alabama – Alabama! – voters rejected a Senate candidate who declared that homosexual behavior was “heinous” and should be illegal. There were lots of other reasons Roy Moore lost, but a number of voters seemed to be telling reporters that, you know, someone in their family was gay, and should still be treated like a person.
In 2017, we have finished the argument over gay marriage. That ship has sailed, or you might say, that cake has been baked.

Now we’re arguing over crumbs.

NOTE: This column appeared in The Sunday Oregonian, 12/17/12.

04 Dec

Trump batters against West Coast blue wall

It might be, as Pink Floyd put it, just another brick in the wall.

But it’s quite a wall.

Last month, huge national attention – and $10 million from all over the country – went to one state Senate race on suburban Seattle. A Democratic victory there in November switched the majority in the Washington state Senate, giving Democrats complete control of state governments across Washington, Oregon and California – creating, in a suddenly ubiquitous phrase, a blue wall along the Pacific.

Just over a year ago, of course, Democrats also thought they had a blue wall from Pennsylvania to Wisconsin, which they counted on to hold firm whatever happened in Florida and North Carolina. That wishful wall’s collapse into off-blue rubble last November challenged the whole idea of load-bearing structures as a political metaphor.

But unlike that blue wall, the Pacific version is based on more than post-1992 presidential election returns – although the West Coast wall certainly qualifies for that, not casting an electoral vote for any Republican since the first George Bush. (Washington and Oregon haven’t provided one since Ronald Reagan.) Washington hasn’t elected a GOP governor since 1980 and Oregon since 1982, giving them the two longest streaks in the country. California hasn’t elected a Republican governor not named Arnold Schwarzenegger since 1994.

But this blue wall is as much about values as election returns. West Coast firmness is based on fundamental differences with Republican dogma on the natural world, the rights of individuals and attitudes toward immigrants.

The wall has stood against election campaigns. But its values are now under attack by a tax bill that cuts deductibility of state and local taxes and quietly moves against abortion rights, and government policies that prize fossil fuels and assault personal freedoms.

The week after the election, the governors of the three states attended a United Nations conference in Germany, on air quality, including a panel where they insisted that West Coast states would continue to limit greenhouse emissions despite national policy. (Washington Gov. Jay Inslee attended the official U.S. event there and denounced it as a “sideshow.”) Earlier this year, following the United States’ withdrawal from the Paris accord on global warming, the governors joined the mayors of Los Angeles, San Francisco, Oakland, Portland and Seattle reaffirming the regional commitment, declaring, “We won’t let the president’s misguided decision limit … our commitment to doing what’s right.”

The position extends a long-term emissions agreement among the three states and the province of British Columbia. The change in control of the Washington state senate could expand legislative options. Meanwhile, California Gov. Jerry Brown is planning to host his own international climate change conference in San Francisco next year.

The West Coast has a commitment to personal freedom standing firmly against an administration eagerly seeking ways to cut back abortion rights, and an attorney general who pronounces, “Good people don’t smoke marijuana.” The three states have some of the least constrictive abortion laws in the country, led by Oregon, which this year enacted a law requiring insurance companies to cover birth control and abortion without co-pays, with state funding covering immigrants who don’t qualify for Medicaid.

The coastal states have led the way in expanding personal rights. Washington, and Colorado, led the nation in legalizing recreational marijuana, followed shortly by Oregon and then California. Oregon was the first to legalize physician-assisted suicide, later joined by Washington and, as of last year, California.

It’s a region unwilling to take legal – or lifestyle – advice from Attorney General Jeff Sessions.

As the Trump administration moves to expand deportations and crack down on “sanctuary” states and cities, the West Coast states have stood like a multicolored – or multicultural – wall. In February, Washington Gov. Inslee signed an executive order banning state employees or resources from being used to enforce federal immigration law, declaring that Washington will be a “welcoming jurisdiction.” In October, California Gov. Brown signed a bill sharply limiting state and local cooperation with federal immigration officers, a law denounced by Sessions as “unconscionable.” This year, Oregon’s legislature bolstered the state’s already strong sanctuary position, banning state officials in most situations from asking about immigration status or sharing the information with federal agencies, causing the conservative Daily Caller to attack Oregon as “the foremost ‘sanctuary state.’”

Compared with the Rust Belt blue wall that crumbled last November, the West Coast blue wall is both bluer and more of a wall. It also stands in ever sharper contrast to the aggressive policies and pressures coming from Washington, D.C.

Democrats taking control of the Washington state Senate may be just another brick in the wall.

But this wall actually stands for something.

NOTE: This column appeared in The Sunday Oregonian, 12/3/17.