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By Nathanael Blake, The Witherspoon Institute, July 6th, 2017
The Supreme Court recently agreed to hear the case of Jack Phillips, owner of Masterpiece Cakeshop, who declined to bake a cake for a same-sex wedding reception. There is no need to coerce artists to employ their abilities in ways contrary to their religious beliefs.
After getting married, my lovely wife and I independently sifted through the many photographs of our wedding and, without saying anything to each other, settled on the same one as our favorite shot: the two of us, kissing, beside the cake. In the years since, that photo has made it into Christmas cards and hung in large size on our wall; it remains my desktop background. Right in the foreground is our wedding cake, a beautiful creation by a local baker. The background is blurred, but the newlyweds and the cake are in clear focus. Though I have almost no memory of what the cake tasted like (she says it was raspberry mousse), the image will be with us for the rest of our lives.
That’s how wedding cakes are. Although some couples decide to skip them, or get simple cakes from the grocer, most do not: most choose elaborate and customized cakes, works of culinary art that are part of the pageantry and ceremony of weddings.
Now, why this paean to the artistry and expression of wedding cakes? Because they have become the battleground of culture-war litigation seeking to erode the First Amendment. It is important to keep in mind, rather than abstract from, their significance. Some would like to use these beautiful confectionary delights to coerce others who oppose a same-sex marriage into participating in same-sex wedding celebrations. The Supreme Court has recently agreed to hear the case of Jack Phillips, a baker and the owner of Masterpiece Cakeshop, who has been persecuted by the Colorado government for declining to make a custom cake celebrating a same-sex wedding. Hopefully even those justices who supported same-sex marriage will recognize that there is no need to destroy the lives of those who sincerely object to employing their artistic talents in same-sex weddings.
There Is No Need to Ruin Mr. Phillips
The First Amendment argument for Mr. Phillips is clear: the government should not compel him to participate in the pageantry and ceremony of a particular wedding when doing so is against his sincere religious convictions. On the other hand, the application of anti-discrimination law against him is weak: he was willing to sell—and did sell—his goods to homosexual patrons, and he refused to make custom cakes for heterosexuals when they requested work that conflicted with his religious beliefs. He did business with anyone who came into his shop, reserving only the right to refuse custom work requiring artistic expression in conflict with his religious beliefs. All the evidence indicates that he was declining only those projects that conflicted with his religious beliefs and not discriminating on the basis of sexual orientation.
True, Mr. Phillips’s religious views are increasingly in the minority, and even some persons who agree with him might consider him overly scrupulous. But the question is not whether it is morally right, currently popular, or theologically justified for someone to refuse to participate in celebrating a same-sex wedding by crafting a special cake for it. The question is whether the government should force him to do so or else ruin him for his refusal.
Those who wish to punish him for his religion have resorted to an argument that distorts and obscures the facts of the case: what about racists? And so we are regaled with deliberate foolishness, such as the pretense that the aggressive persecution of a few non-conformist wedding vendors who wish to opt out of same-sex wedding ceremonies is all that stands between us and Jim Crow. For some on the left, it’s always 1964, and the enormous power used to break the back of segregation should be perpetual and expanding.
But this crusade to find new wrongs to punish is dangerous. Government power should be exercised in proportion to the wrong it seeks to remedy. The vast and intrusive expansion of government power used against segregation fifty years ago is grotesquely, wickedly disproportionate when applied to a case like that of Mr. Phillips, especially when there is no shortage of bakers who will happily create a custom wedding cake for a gay couple.
Sadly, governments, and those who control them, rarely relinquish power. The evil of government-mandated racial segregation is long-gone, but for many this victory is an opportunity not to beat their swords into plowshares, but to turn their weapons on new targets. But using the specter of Jim Crow to argue for new limits on First Amendment rights is like justifying new military spending by pointing to the threat of the USSR. And if anti-discrimination law can’t distinguish between the segregationist South and a few non-conformist wedding vendors, then it’s time for better anti-discrimination law.
Don’t Push the Envelope
While it is undoubtedly tempting for gay activists and their allies to push the envelope as far as they can, attacking First Amendment rights undermines the case for gay rights. Same-sex marriage was promoted as a live-and-let-live arrangement (“how will their marriage affect you?”), and for its advocates to abandon that premise in victory would be a mistake.
Justice Kennedy’s decision declaring a constitutional right to same-sex marriage was rooted in his understanding of human dignity and authenticity. Whether he was right or not, his jurisprudence ought to embrace the rights of conscience, including the right to refuse to participate in speech or ceremonies.
Consider Kennedy’s oft-quoted declaration from Planned Parenthood v. Casey that at “the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This liberty implies a right to peaceably live by views that others find wrong, even repugnant. It includes a presumption of a right to inaction, to be free to refuse to participate in that which one’s conscience forbids. Even in war, when the survival of the nation may be at stake, our nation has always recognized (albeit sometimes imperfectly) the rights of conscientious objectors—the government cannot compel a pacifist to take up arms.
There are, of course, legal doctrines designed to ensure that the protection of conscience is not abused, which is why telling the IRS that you’ve founded the Church of Not Paying Taxes is unlikely to have the desired effect, and why human sacrifice is still murder. But the American system provides, as it should, broad protection for the rights of conscience, even when their exercise is unpopular.
Undermining the right to live peaceably and authentically in accord with one’s conscience will hurt conservative Christians like Jack Phillips now, but it will not end with them if this reasoning is consistently applied. If the government can compel peaceable people to set aside sincere convictions that are central to their identity, then the foundation of Justice Kennedy’s gay rights jurisprudence crumbles as his cherished ideals of dignity and liberty are revealed as empty words.
The rights affirmed by the First Amendment will sometimes be misused, but that is the price of liberty. These rights provide protection for everyone, and it would be shortsighted for the left to diminish them in order to score points against conservative Christians now.
It is not difficult to think of possible cases that would reverse the political sympathies at play here. For example, churches often hire artists from outside their congregations; do those artists have a right to refuse to lend their talents to religious services and purposes? Could a church sue to compel a gay atheist songwriter to compose a hymn, or a Jewish artist to paint a mural of Jesus? Could a Christian band force a neo-pagan luthier to craft custom Bible-themed instruments for them?
The usual response to such hypotheticals is to find some way to argue that the cases aren’t really parallel (“my choice not to do business with certain people is a principled stand against injustice, yours is just bigotry”). Indeed, such litigation would likely be unsuccessful; the Colorado Civil Rights Commission, which brought the case against Mr. Phillips, managed to claim that other bakeries may decline, without discriminating on the basis of religion, to create cakes with scriptural quotations.
The grounds for distinguishing here are simply absent, and the different treatment comes at great cost to intellectual consistency and rule of law. This sort of legalistic and self-righteous response, which attempts to protect one’s own freedom of conscience while restricting that of others, is poison to liberty. A society that respects the human dignity of individual identity and conscience will not compel anyone to engage in speech or artistic expression for a church, creed, or ceremony. In the case before the Supreme Court, Jack Phillips’s business is none of the government’s.
Let him bake cake, or not, as he will.
Nathanael Blake has a PhD in political theory. He lives in Missouri.