Five thoughts on the gay wedding-cake decision

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The Supreme Court’s recent decision in the Masterpiece Cakeshop was much anticipated and pitted supporters of religious expression by a Colorado wedding-cake baker against supporters of gay marriage and gay rights. But the 7-2 decision in favor of the baker was on such narrow grounds that the broader question—when does religious expression trump equal rights?—was left unanswered. Given current polarized times, odds are that we are in for a continued battle between legitimate but competing points of view. If you are on one side or the other, this article may help show that the issue is not as straightforward as it may seem. Five points:

  1. The Supreme Court Got It Right.

The Court provided a particularly narrow ruling in favor of the baker, finding bias in the Colorado Civil Rights Commission’ ruling against him. Language in the Court decision indicated an understanding of the two points of view:

[W]hile…religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.

On the other hand:

[R]eligious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.

The non-decision was particularly commendable because there was insufficient factual information available in the brief, 20-second conversation between the baker and the gay couple that led to the dispute. What details of the cake were requested by the couple? None, the conversation did not get that far. Would the baker have been willing to provide a generic, unadorned tiered cake, or an unadorned pan cake? We don’t know.

At some point, there may be a Supreme Court case with a more specific fact pattern. That will be required to more clearly define the respective rights and responsibilities of a baker and a gay couple. But the fundamental questions are left for another day, questions such as:

  • Is a wedding cake a form of artistic expression and thus “speech” that cannot be compelled?
  • If so, what other forms of craftsmanship are protected by the First Amendment—flower arrangements, photography, catering, printing?
  • More broadly, how can the right to “speak” or not speak through the provision of customized services be reconciled with the need to prevent discrimination against marginalized groups?
  1. Religious beliefs are protected, but not all behavior

Religious beliefs often call for certain actions, such as daily prayer, confession, Holy Communion, and fasting. Yet, additionally, religious beliefs can be highly personal, with views that some might even find objectionable, such as worship of Satan, belief in animal sacrifice, and ingestion of hallucinogenic drugs.

Courts have ruled unequivocally that religious beliefs of all types are protected under the First Amendment. Actions based on those beliefs are not protected in the same way—courts have found that some actions can be limited even when the contention is that they are an integral part of a personal religious belief.

The classic example of this is the 1878 Reynolds v. United States decision upholding the law against polygamy despite the religious teachings of the Mormon Church. The Supreme Court said:

Laws…cannot interfere with mere religious belief and opinions, [but] they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? 

While the example is extreme, the point holds. On the other hand, a prohibition against religious clothing (for nuns, Muslims, Jews) would almost certainly be found unconstitutional as an unwarranted religious infringement, though laws can require exposure of the face during photographs for driver’s licenses and passports.

Non-discrimination laws were found to be senior to religious objections in the case of Newman v Piggie Park Enterprises (by the South Carolina District Court, as amended under appeal by the United States Court of Appeals and the U.S. Supreme Court). The owner of Piggie Park restaurants contended that “his religious beliefs compel him to oppose any integration of the races whatever.” The courts found that those beliefs did not absolve the requirement that Piggie Park comply with the Civil Rights Act of 1964.

On its face, the Piggie Park case appears to provide a specific holding that requires the baker to comply with the Colorado non-discrimination statute for “race, creed, color, sex, sexual orientation, marital status, national origin, and ancestry.” But some have argued that racial discrimination is different than discrimination based on sexual orientation.

  1. Comparing discrimination against Blacks and Gays

Is refusal to provide a cake for a gay wedding comparable to refusing to provide service to black people? Perhaps discrimination against gay individuals wanting to be married is different. One article argues:

Support for conjugal [i.e., “traditional”] marriage isn’t anti-gay. A ruling in favor of Jack Phillips [the Christian baker] sends no message about the supposed inferiority of people who identify as gay—indeed, it sends no message about them or their sexual orientations at all. It would simply say that citizens who support the historic understanding of marriage are not bigots.

Yet the arguments in these three sentences fail on several grounds. First, the issue is not support for traditional marriage, but objections to same sex marriage, which clearly appears anti-gay regardless of whether those objections stem from religious beliefs or otherwise. Second, a ruling that provides unequal treatment toward gay weddings would provide legal sanction to treat gay individuals in a lesser way than others, despite the unsupported contention otherwise. Third, those that refuse to provide services for a gay wedding are obviously being prejudicial (even if that prejudice stems from a religious viewpoint).

An additional contention is that refusing to provide otherwise-publicly-available services for a gay marriage is objecting to an activity rather than objecting to the individuals. However, court cases in Colorado and elsewhere have consistently found this to be “a distinction without a difference.”

The reasoning of the Virginia judge, whose decision regarding interracial marriage was overruled by the Supreme Court, is instructive:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

In a similar way, passionate objections to gay marriage are based on contentions of Biblical support, i.e., that the Bible only mentions marriage between a man and a woman. Yet, except for the passage of time between the ban on interracial marriage in 1967 and the prior legal question about gay marriage, resolved by the Supreme Court in 2015, the use of personal religious beliefs in support of intolerance is at play in each case.

  1. Putting the Shoe on the Other Foot.

While the observations so far might appear to weigh in favor of the gay couple, the issue is not simply a Christian baker objecting to gay weddings. Members of religious disciplines have the same sort of rights as members of the gay community (in Colorado) or other protected classes such as race, gender, and national origin.

Undertaking a thought experiment where the proprietor is of a different protected class, or the customer is of a different protected class, can be revealing. For example, would an atheist painter be required by law to produce a picture of the ascension of Jesus?

Should gay, lesbian, atheist, Black, or Muslim shopkeepers be forced into participating in events that they find distasteful? Must a Black baker be required to provide a cake celebrating the creed of the Ku Klux Klan? Should a gay photographer be required to provide services to a religious event that features a homophobic presentation?

Discrimination can work both ways.  Should a chef be able to refuse to provide catering services to an Evangelical Christian event because he or she does not agree with Evangelical views?

These are not fanciful examples. The Supreme Court decision in Masterpiece specifically cited the disparate treatment of the Colorado Civil Rights Commission who treated pro-gay and anti-gay requests for services completely differently. The issue is larger than merely Christian storeowners but can affect businesspeople of all types who have strong beliefs and do not want to be coerced into actions they oppose.

Conduct can be compelled or restricted by the government when there is an important interest. The concept under non-discrimination laws is that even if you don’t want to serve a disabled person or a minority or a woman—or in this case a gay couple—you have to do it anyway. But Colorado non-discrimination law protects “creeds” of all types, just as it protects races, genders, and sexual orientation.

When one envisions that the proprietors of customized professional services are not Christian but part of a different protected group, a greater understanding of the full issue can be obtained. This is especially true when the services entail active attendance at an event, such as photographic or catering services, rather than more passive services such as printing wedding invitations or selling flowers.

In short, both shopkeepers and customers of any persuasion deserve dignity. A religious point of view is no greater and no less worthy of legal protection as other protected classifications.

  1. Christians are entitled to selective Biblical interpretations

Beliefs are legally protected, and can be highly individual and personal. In the area of gay rights, some Biblical scholars have cited translations of the original manuscripts that indicate a substantial embrace of all loving relationships, while other religious arguments provide exactly opposite conclusions.

Although the Bible does not have direct statements opposing gay marriage, it does have passages against homosexuality, such as 1 Corinthians 6:9-10:

Neither the sexually immoral nor idolaters nor adulterers nor men who have sex with men nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God.

Biblical historians have debated the translation of the Greek word “arsenokoitēs” from which the term “have sex with men” is derived. The current weight of opinion is toward a conclusion that arsenokoitēs involves some type of homosexual behavior, though tending toward something other than a committed and loving relationship. Nonetheless, under this interpretation, a man who has sex with another man is at the same level as an adulterer, a greedy person, and a drunk.

Many Christians believe that broad messages of Jesus toward compassion and understanding are critical, and do not align with the use of religion as an excuse for prejudice. This perspective relies on the second great commandment to “love they neighbor as thyself.” Thus, Episcopalians, Lutherans, Presbyterians, and other churches support same-sex marriage.

Other Christian churches and individual Christians put a different emphasis on some Biblical admonitions over others, and sometimes extend their own interpretation to what those passages imply. These points of view can support a bias against other races, religions, and lifestyles.

The Colorado baker has stated in court filings that “the Bible commands him to flee from sin and not to participate or encourage it in any way.” Though the court record provides no indication that the baker would “flee from sin” by refusing to bake a wedding cake for an adulterer or a drunk (or, from Matthew 19:4, a divorcé), he nonetheless is entitled to his own beliefs under the First Amendment.

The core question, however, is the extent that those beliefs lead to protected behaviors. Given the strong precedent of the Piggie Park restaurant case, courts are likely to lean toward decisions favoring non-discrimination of customers.

However, the competing and legitimate objectives indicated in Masterpiece recall the admonition to “be careful of what you wish for.” A future Supreme Court decision strongly in favor of one side or the other, rather than a balanced approach, can have unintended consequences. Proprietors of customized services of all persuasions deserve a level of respect, just as customers of all persuasions do.