If you’re reading this blog, odds are quite good that you’re aware of the “gay wedding cake” case currently before the Supreme Court. But, just for completeness, here’s the gist: A gay couple sought to purchase a custom-decorated wedding cake from a bakery in Colorado. The owner of the bakery told the couple that he’d sell them a cake, but that due to his religious beliefs (including beliefs opposing gay marriage), he wouldn’t agree to decorate the cake for them per their desires/specifications.
The gay couple filed a civil rights complaint, citing public accommodation and anti-discrimination laws, that turned into a lawsuit. The baker lost the case, and was ordered not only to provide a cake decorated per instructions, but to change policy, retrain staff, and provide quarterly compliance reports for two years. The baker lost his first state-level appeal, and the Colorado Supreme Court declined to hear the case. The baker petitioned SCOTUS, and was granted certiorari. Oral arguments recently concluded, and a ruling is expected in June.
I will not, herein, recap the arguments presented before the Court. You can find that all over the internet. Instead, I will tell you why I, a long-time supporter of gay marriage, believe that the Court should rule in favor of the baker, and not simply on religious freedom grounds. Indeed, while the case is born out of religious beliefs, the principles of free speech, free association, and economic liberty are broader grounds, and a ruling based solely on religious liberty is one that will enable coercion of service of those whose objections are secular. Getting a liberty case to the Supreme Court is by no means a sure thing, and it would be very good to establish a pro-liberty precedent that isn’t narrowed solely on religious grounds.
While I have written several times about the violation of liberty that is public accommodation law (the principle that, by opening a storefront business, you forego your freedom of association and are obligated to serve anyone who walks through the door), this case isn’t about that. The baker raised no objection to the plaintiffs buying cakes from him. It’s solely about being forced to decorate the cakes to the customers’ specifications (the rallying cry here should be “Decorate That Cake!,” but that doesn’t flow as nicely). The fact that he is doing so on religious grounds should not be the basis of judging his objection. Rather, it should be recognized as coerced speech, and it doesn’t matter whether the speech being coerced is right or wrong. People are allowed to be wrong.
What of the rights of the gay couple, one might ask? Fundamentally speaking, in a free and equal society, a “right” cannot infringe upon another’s rights or liberties, because that would mean that some people’s rights are subordinate to others’. In other words, you cannot assert rights that infringe upon my own. Unfortunately, that principle has been abandoned in favor of the establishment of protected classes. Protected classes are identity groups that have been deemed oppressed and are therefore afforded, via coercion, “rights” that infringe upon the rights of others. This is at the core of public accommodation theory, which was instituted as part of the Civil Rights era reformations. As a remedy to the institutionalized violation of rights known as the Jim Crow laws, this idea of public accommodation and protected classes constituted a “lesser evil.” But, as such, it should have been a transitory principle, not a permanent or expanding one. Unfortunately, when a tool is added to the public toolbox known as government, there is plenty of incentive for anyone who can get his hands on it to wield it to advantage, and that’s going to forever be the case with identity politics, oppressed groups, and public accommodation.
Here, you, the reader, must decide. Do you believe that all people are equal in their rights, or do you believe that it is proper that some people’s rights be subordinated to those of others (a subordination that will include government coercion – you can’t have one without the other)? Think about the ramifications before you answer.
You see, if you believe in the latter, then you are OK with forcing a devout Christian to tacitly endorse gay marriage by decorating a cake for a gay wedding. I’d bet, however, that you are not OK with a Jewish baker being forced to draw a swastika on a cake, or a Muslim baker being forced to draw the image of Mohammed on a cake. Those are the obvious slippery slope counterexamples, but their obviousness and ubiquity does not make them wrong. Lets go a step further. Do you believe that a baker can properly be coerced to draw Josef Stalin, Mao Zedong, Pol Pot, or Idi Amin? These are all murderous monsters, and some would be deeply offended by a celebratory depiction. How about Che Guevara, the murderous, racist homophobe, whose face bizarrely adorns millions of hipster T-shirts? Would you go to court to demand that a baker decorate a cake thus?
Yes, I’ve picked examples where right and wrong are relatively obvious. How about, then, a flat-earth-believing baker being asked to make a cake of the Earth as a globe? Yes, the baker is wrong, spectacularly so, but isn’t he allowed to be wrong? Can you coerce his behavior against his will?
You might not agree that carrying out a customer’s wishes constitutes a tacit endorsement of a viewpoint, but you’d be, again, elevating your opinion and beliefs above those you seek to coerce. If someone feels that doing X is against his beliefs, religious or secular, and that he’d be contributing to the promulgation of those contrary beliefs, well, that’s more his right to decide than it is yours.
Here’s another question. Lets say there is a public speaker, one who tours the country taking paid gigs, whose delivery and style you like. Can you demand that speaker present a speech that you prepared, or demand that speaker accept a commission to write a speech expressing an opinion you wish shared, even if he disagrees with it? Can Barack Obama refuse your paid offer to make a speech advocating free-market health care, or extolling the virtues of President Trump? If so, what’s the difference between him and the baker? Both Obama and the baker say “Here’s the product I offer, buy it or not, it is your choice.” Their offering of that product does not constitute a foregoing of their individual rights of opinion, free expression, association, and economic liberty.
I’m sure some still believe that right and wrong are at play here, that the baker foregoes his right to be wrong when he hangs a shingle and invites customers. And, I’m sure that, when asked who decides what’s right and wrong, the answer will be “society.” But, do you actually mean that? Do you actually believe that “society” should arbitrate right and wrong? Lest we forget, “society” in the South supported segregation as recently as the mid-20th century. Or by “society” do you mean yourself and those who think as you do? Sure, it’s easy to say that the Nazis were evil, but the Communists and Socialists were just as evil, and yet I hear a whole lot of the opposite from those in society who claim final decision on right and wrong. The only way to properly address this is not to elevate the beliefs of some over the beliefs of others when doing so requires that the rights of some be subordinated to the rights of others.
Yes, we have protected classes, and we’ve established them to right past and current systemic injustices, even though establishing protected classes violates others’ rights. What systemic injustice did the gay couple at the center of this case suffer, however? There were many other bakers perfectly willing to make their cake as they wished. Rather than let the free market deal with the defendant baker, they chose to leverage their status as a protected class into coercion. And, when we allow a protected class to become a coercive class, we harm rather than help the cause and goal of equality.
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Excellent post. You have outlined the nuances of the case very well and I agree with your point of view. I support gay marriage, but not forcing a business man to support it. That principle should stand on its own. No religious principle need be invoked.