How Colorado unwittingly sided with Masterpiece Cakeshop in the SCOTUS hearing

During the Masterpiece Cakeshop vs. Colorado Civil Rights Commission (CCRC) case before the Supreme Court of the United States, an attorney for Colorado unwittingly sided with Masterpiece Cakeshop.¹

A quick summary of the case is that a gay couple in 2012 wanted Masterpiece Cakeshop to make them a rainbow-filled custom cake in celebration of their gay "wedding." Shop owner Jack Phillips is a religious man opposed to the concept of gay "marriage" and so chose not to affiliate his cake artistry in celebration of a gay "wedding" ceremony. Attorneys for Masterpiece argued that free speech protects their client from being compelled to make speech—in this case the artistic expression of a custom cake—contrary to his beliefs.

There are many facets to this case and the December 5 SCOTUS hearing worth discussing, including free speech, what verdicts should be rendered, or what laws might be best in a free market. But the purpose of this blog post is to focus on the apparently inadvertent concession made by CCRC.

KEY EXCHANGE #1

In the middle of the hearing, an exchange took place between Justices Alito and Sotomayor and Frederick Yarger, solicitor general on behalf of CCRC.

YARGER: Mr. Phillips would not be required to sell a cake to a gay couple that he wouldn't sell to his other customers.

Justice Alito interjected:

JUSTICE ALITO: Mr. Phillips would not— do you disagree with the fact that he would not sell to anybody a wedding cake that expresses approval of same-sex marriage?

Yarger does not answer the question directly but admits his case requires the presence of discrimination based on the identity of the customer:

YARGER: What he may not do as a public accommodation that offers to the public ... is decide that he won't sell somebody a product that he would otherwise sell because in his view the identity of the customer changes the message.

JUSTICE ALITO: No, he didn't say the identity. He said the message.

Crosstalk occurred until Justice Sotomayor interjected:

JUSTICE SOTOMAYOR: I'm sorry, could you answer the question asked?  Let's assume this couple did come in and wanted the rainbow cake. ... And this gentleman says one of two things:  If you're same-sex, I'm not going to provide you with a rainbow cake or I don't create rainbow cakes for weddings because I don't believe in same-sex marriage.  I'm not going to sell it to you. I'm not going to sell it to a same (sic)— a heterosexual couple.  I just don't want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding.

Yarger then repeated the parameter which would unravel his own case if true:

YARGER: Justice Sotamayor, in that latter case, if that was truly a product he wouldn't sell to any other customer, he wouldn’t sell to any other customer, he would not have to sell it to this customer.

In these words, Yarger has conceded his own position. Both Justices Alito and Sotomayor asked if it was okay if a business refused to sell even a heterosexual couple the same cake for the same purpose. Alito even referred to it as "fact" that Phillips would not serve to anyone a cake celebrating a gay "marriage." Thus, Yarger cannot say the refusal of service was based on the identity of the customer.

To look at it another way, if a heterosexual couple entered the store to buy a cake, the heterosexual couple would be the customer. If that heterosexual customer wanted a rainbow cake to bring to a gay "wedding," Mr. Phillips would have refused. The sexual orientation of the customer is not a determining factor in producing the cake in question. The customer could be gay or straight, and the business owner would refuse either way. Therefore, CCRC cannot argue that Masterpiece would sell the same product to one identity but not another. CCRC, by the admission of their own counsel, have no case.

KEY EXCHANGE #2

Shortly, thereafter, Justice Alito and Yarger held another exchange to the exact same effect:

JUSTICE ALITO: So if someone came in and said: I want a cake for— to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them the cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we're going to have a party to celebrate Kristallnacht. He would have to do that?

Notice what Alito did here. He came up with a scenario that 1) excludes the identity of the customers; 2) features the identical product for both customers; and 3) features a different purpose for the product. Yarger is thus forced to ignore the identity of the customer or any features of the product. Yarger is forced to address whether the purpose of the cake is a viable reason for refusing service. And, once again, he concedes exactly that:

MR. YARGER: Your Honor, that wouldn't be— 

JUSTICE ALITO: It's exactly the same words. 

MR. YARGER: It is, Your Honor. I haven't— I don't— that would be a question about whether there is a even-handed, genuine policy applied by the baker that doesn't have to do with the identity of the customer. And if it has to do with a message that is apart from the identity of the customer, then he can refuse that.

Phillips has additional precedent because he has knowingly served multiple gay customers in the past. Their identity cannot reasonably be said to be a factor if Masterpiece only refuses service to those customers—and customers of other identities—for the same type of event. Clearly, the event—in this case the celebration of a gay "wedding"—is the catalyst in refusing service, not the identity of the customer. Phillips has also refused service for a variety of other messages independent of the customer's identity, including refusing to make Halloween cakes, divorce cakes, and even cakes that have anti-gay messages on them.

Because customer identity is not a determining factor in this case nor in the hypotheticals posited by the Justices quoted above, CCRC has no case by their own unwitting admission.

¹For background and further analysis, see amicus brief by Dr. Ryan T. Anderson, The Hill, National Catholic Register, et al; See transcript of SCOTUS hearing PDF here; Listen to audio of SCOTUS hearing here.

"Birth Control" is not medicine

On October 13, 2017, the federal government issued an interim rule which exempts religious entities from paying for objectionable services as part of their insurance plans. These include:

(FDA)-approved contraceptive methods, sterilization procedures ... [including] certain drugs and devices that may not only prevent conception (fertilization), but may also prevent implantation of an embryo ... that many persons and organizations believe are abortifacient.

See here for several prior TCV blog posts about this issue.

WHAT IS MEDICINE?
Responding to this interim rule, Hillary Clinton tweeted: "Rolling back no-copay birth control shows a blatant disregard for medicine, science, & every woman's right to make her own health decisions."

Planned Parenthood, which is pacing at about 300,000 abortion victims per year, also responded. Their president, Cecile Richards, issued a statement saying exemptions for "birth control coverage" are an "attack on basic health care."

Many other celebrities and non-celebrities upset by the rule echoed similar sentiments.

But medicine is designed to fix an affliction of the body. Medicine's end goal is a body that functions properly. For example, medical remedies can come in the form of pills that directly fix a bodily problem such as antibiotics that attack or prevent bacterial infections. Medical remedies can come in the form of a surgery to repair a broken limb or remove a cancerous mass—any necessary part of that surgery could be considered medical care.

Birth control is not medicine. In fact, birth control's end goal is to cause a properly functioning body to malfunction.

One might try to argue something like anesthesia is not medicine, since, for example, it temporarily causes the patient the inability to feel—a malfunction of the body. However, this is only done as part of a larger goal of correcting the body. Body malfunction is not the end goal of using anesthesia. Something like an incision is similar. The ultimate goal isn't to scar a patient, but it can be necessary to ultimately treat the affliction. Contrary to these, the end goal of birth control is body malfunction.

In the case of oral contraceptives, an otherwise properly functioning ovulation cycle is stifled. Other oral contraceptives thicken an otherwise fertile uterine wall, preventing implantation of a zygote, thus killing it. Generally speaking, these are all forms of sterilization—which is a field of disease in itself. This is the product we are told must be covered by medical insurance. Forget for a moment any religious beliefs behind objections to the original mandate. Requiring insurance coverage of birth control can be opposed on medical grounds alone—specifically that birth control is not medicine.

In the earliest stages of this birth control/insurance matter, Cardinal Daniel DiNardo wrote on behalf of the U.S. bishops: "[P]regnancy is not a disease." 

In response to this latest rule, Lila Rose, president of Live Action, defended this concept in a tweet:

Abortifacient drugs are the antithesis of "healthcare." Medicine is meant to heal, not kill.

Abortifacient drugs are the antithesis of "healthcare." Medicine is meant to heal, not kill. https://t.co/Xx2XKP3TYp

— Lila Rose (@LilaGraceRose) October 6, 2017

And she is exactly right. Medicine is meant to heal.

WHAT ABOUT OTHER USES FOR CONTRACEPTIVES?
As in 2012, objectors immediately pointed out that some contraceptives can be used to regulate cycles or alleviate pains. However, in such cases, the product would not properly be called "birth control" because the drug is not used to prevent birth. Recall in 2012, Bishop Lori, speaking before congress, explained how the same medications typically used for birth control could possibly have other uses:

Blake Farenthold - The Catholic Church does not have a problem with contraceptives for medical purposes. So I would assume from that it wouldn't be morally objectionable to the Church to pay for those for medical purposes. I'm not trying to put you on the spot, I'm just trying to make sure I understand where the Church stands. 

Bishop Lori - That would be my understanding also.

And:

Bishop Lori - I think Catholic moral theology is very nuanced. It recognizes that the same drug can operate in different ways and accomplish different things. If it is used to prevent birth, it is against our teaching.

The Bishop's principle can be seen in action, for example, at the University of Notre Dame's human resources page:

[U]nder the university’s plan, you cannot receive reimbursement for oral contraceptives, contraceptive devices or contraceptive implants, except when specifically requested by a physician based on medical necessity and for purposes other than contraception.

Insurance companies have made similar distinctions with other drugs. For example, Finasteride can be used to treat enlarged prostates but also to treat hair loss. The latter is considered cosmetic and insurance companies are not required to cover the drug in such cases.

Nevertheless, the original HHS Mandate made no distinction regarding coverage of contraceptive products. Contraceptives were required for medicinal as well as anti-medicinal purposes. The Church and other entities object to the anti-medicinal use of contraceptives, i.e. birth control.

WHAT ABOUT VIAGRA?
You may have seen in reaction to this latest rule cries that requiring coverage for Viagra is hypocritical or misogynistic. For instance, NARAL, a vocal pro-abortion group, tweeted: "In case you were wondering, bosses can’t “opt out” of paying for Viagra." 

But what is the obvious failure of intellect in that statement? Viagra, which treats erectile dysfunction, is designed to correct a body malfunction. And, again, birth control, is designed to cause body malfunction. If NARAL and their peers were serious about finding a valid parallel, they would argue that something like OTC skin ointment should be covered since it is designed to fix a bodily affliction or mouthwash which is designed to prevent poor hygiene.

I should note, for the purposes of this blog post, I'm not arguing whether or not any drug/treatment should be "required" in medical insurance policies. Certainly there are reasonable discussions that could be had regarding coverage of only major medical expenses or to give market forces a greater voice in shaping insurance policies. The purpose of this post is focused on birth control and the nature of medicine.

OUR LADY'S INVOLVEMENT?
You might have noticed at the beginning that this interim rule was issued on October 13, 2017, the 100th anniversary of the apparition of Our Lady at Fatima and the Miracle of the Sun. One of the central figures in this contraceptive case was the Little Sisters of the Poor who would have incurred severe fines under the original mandate had they not paid for birth control for someone else. Other religious entities faced similar burdens. Many prayers on this matter have occurred over the past 5 years. Participation in birth control, sterilizations, and chemical abortions are clearly a moral offense in the eyes of the faithful. This is why the matter of conscious rights took a prevalent position in this discussion. We saw in a previous TCV article the amazing rescue of Chilean miners on October 13, 2010. Might Our Lady have interceded for the faithful and little ones, to protect their consciences, lives, and souls?

Debunking the Monty Hall "solution"?

Although this post is not directly theological, it is an exercise in logic and lateral thinking. Such cognition can be useful in life when answers are not obvious. It can also help in theological studies such as when interpreting Scripture in instances where figurative lessons await discovery beneath the literal meaning of a text. So let's look at the classic Monty Hall problem.

Here is how an article at Scientific American presents the Monty Hall problem and it's supposed solution:

[Y]ou are on a game show with three doors, behind one of which is a car and behind the other two are goats. You pick door #1. Monty, who knows what’s behind all three doors, reveals that behind door #2 is a goat. Before showing you what you won, Monty asks if you want to switch doors. ... [Y]ou should always switch. ... Here’s why: At the beginning of the game you have a 1/3rd chance of picking the car and a 2/3rds chance of picking a goat. Switching doors is bad only if you initially chose the car, which happens only 1/3rd of the time. Switching doors is good if you initially chose a goat, which happens 2/3rds of the time. Thus, the probability of winning by switching is 2/3rds, or double the odds of not switching. ... [T]ry the various computer simulations yourself and you will see that you double your actual wins by switching doors.

The article also posits these three assumptions:

(1) Monty never opens the door you chose initially; (2) Monty always opens a door concealing a goat; (3) When the first two rules leave Monty with a choice of doors to open (which happens in those cases where your initial choice was correct) he makes his choice at random.

Let's take a look at this visually in 2 Figures:

The classic Monty Hall solution recommends each contestant switch to the other's door to improve his odds of winning. But, as you can see from Figures A and B, there is a statistical conundrum.

In the above scenarios, each of the three classic Monty Hall assumptions were accounted for in each contestant's game. And, remember, the hidden prize location is the same for both contestants. The classic Monty Hall solution tells contestant #1 that door #3 has a 2/3 chance of winning. And the classic Monty Hall solution tells contestant #2 that door #1 has a 2/3 chance of winning. But how can 2 doors have a 2/3 chance of winning? The two doors cannot combine for a 4/3 chance of winning. It is at least statistically paradoxical.

In conclusion, I don't profess to be a statistics expert. And even if someone offers a sound mathematical explanation to account for what I've discussed above, I think the thought exercise will at least be fruitful in producing that answer — one which I have not previously seen to date.

A 2D graphic analogy of the Trinity

The mystery of the Most Holy Trinity is the central mystery of the Christian faith and of Christian life. God alone can make it known to us by revealing himself as Father, Son and Holy Spirit. (CCC#261)

A couple years ago, I came across this illusion. Do you see a woman or do you see a bird? Look at it long enough, and you'll see both. There are many similar famous illusions. But what struck me at the time was how the image didn't change, yet it embodied both depictions. Simply speaking, the image is a two-in-one. This ignited a lightbulb over my head.

The catechism initially describes, you guessed it, three qualities with regard to the dogma of the Holy Trinity:

• The Trinity is One (CCC#253)
• The divine persons are really distinct from one another (#254)
• The divine persons are relative to one another (#255)

Was there a work of art that depicts three-images-in-one without a change to the artwork itself, similar to the above woman-bird illusion? I took to the Catholic Forums with this quest. User Beryllos provided a figure involving cube shapes.  I've recreated my own version of the artwork here:

There are three distinct perspectives to view this one work of art. You can see here:

• A cube tucked in a corner
• Looking up at the missing corner of a cube
• A small cube at an angle in front of a larger cube

If you don't see any of these, I created animated gifs at the bottom of this post to better visualize each of the three hidden perspectives. I also did it as an excuse to dust off old LEGO® blocks.

Let's review the three qualities of the Trinity in the catechism as they correspond to the cube illusion:

• One - The cube illusion is a single image just as God is indivisible. When recognizing the different cubicle arrangements within the image, the image itself is not divided. 
• Distinct - Each of the three cubicle arrangements are different, yet embody the entirety of the original image. This corresponds to the indivisibility of God even though the three divine persons are distinct. 
• Relative - CCC#255 expounds on the Trinity's relationships thusly: "the real distinction of the persons from one another resides solely in the relationships which relate them to one another." And it goes on to reference Father, Son, and Holy Spirit, which are relational concepts. In the cube analogy, the relational distinctions are admittedly weak in that none of the three relationships between each figure are dependent on one another. Instead, each of the three distinct perspectives are revealed in the way each relates to the same lines. 

Certainly, neither this, nor any temporal analogy, is adequate to "explain" a mystery as vast as the Holy Trinity. As Cardinal Ratzinger (Pope Benedict XVI) once said of Christ's decent into hell, we try to understand the matter with "images which remain very inadequate." "For now we see in a mirror dimly," (1 Cor. 13:12) as Paul wrote. But, we can still get dim glimpses of God through "the world's order and beauty." (CCC#32)  Perhaps this thought exercise contributes to that pursuit.