Let Them Not Bake Cake

Does gay marriage trump the right to religious expression?

 
 

Let Them Not Bake Cake
PHOTO: ISTOCK/GETTY IMAGES
 

The Supreme Court on Tuesday will hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, which ostensibly pits the government’s interest in social equality against an individual’s constitutional right to express his beliefs. But these two democratic values aren’t incompatible, assuming the Justices respect America’s pluralistic tradition that lets people of good faith disagree.

At issue is whether baker Jack Phillips, who opposes same-sex marriage out of sincere religious beliefs, can be compelled to custom design a cake for a gay nuptial. The Colorado Civil Rights Commission determined that Mr. Phillips’s refusal to bake a wedding cake for two men violated the state’s public accommodation law, which bars discrimination based on sexual orientation. The commission ordered Mr. Phillips to cease discriminating and required his employees to undergo compliance training.

Rather than violate his conscience, he stopped custom-baking wedding cakes and appealed the commission’s order. He contends that a custom-design cake constitutes art as well as symbolism that is protected by the First Amendment. The Colorado Court of Appeals rejected Mr. Phillip’s argument on grounds that the public accommodation law is neutral and generally applicable.

Such cases were inevitable after the Supreme Court’s ruling in Obergefell v. Hodges (2015) that guaranteed a right to same-sex marriage. Writing for the majority, Justice Anthony Kennedy held that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises . . . But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” 

States have since compelled florists, photographers, bakers and venue hosts to personally sanction marriages that they find morally objectionable. Those who don’t are stigmatized and in some cases coerced.

While some on the left liken Mr. Phillips to hotel owners in the Jim Crow era, there’s no evidence of invidious discrimination. Mr. Phillips and others who have denied wedding services to same-sex nuptials have consistently served gays in other contexts. Mr. Phillips said he would sell the gay couple other baked goods—simply not a custom wedding cake.

Mr. Phillips has also consistently conducted his business according to his moral scruples, including refusing to make cakes with vulgar messages, which the state’s public accommodation law allows.

The case raises significant First Amendment concerns. Custom cakes can be construed as artistic expression, which is protected by the First Amendment. And weddings for many people are religious celebrations, and participation—or abstention—is itself an act of expression.

The Supreme Court has long held that the First Amendment prohibits the government from compelling speech or the exercise of religion. Its landmark ruling in West Virginia State Board of Education v. Barnette (1943) protected the right of a Jehovah’s Witness not to participate in the Pledge of Allegiance. In Wooley v. Maynard (1977), the Court said New Hampshire could not compel a Jehovah’s Witness to display the state motto “Live Free or Die” on his license plate since the First Amendment protects “the right of individuals to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.”

Colorado relies heavily on Employment Division v. Smith (1990) in which a Native American sought a religious dispensation under the First Amendment after being fired for smoking peyote. “The right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability,’ ” Justice Antonin Scalia wrote for the majority.

But Colorado’s public accommodation law is not neutrally applied. It is applied selectively to dictate ideological conformity. For instance, the commission has allowed three bakers to deny service to religious customers who requested a cake criticizing same-sex marriage. Thus the state is punishing forms of speech it dislikes.

Yet the Court held in Obergefell that the government may not enshrine into law any viewpoint that can be used to “demean” or “stigmatize” those with different mores—which is effectively what Colorado has done by censuring Mr. Phillips. Smith also stipulated several religious exemptions from generally applicable laws including that “the government may not compel affirmation of religious belief” or “impose special disabilities on the basis of religious views or religious status.” Colorado does both.

A ruling for Colorado could encourage other government burdens on First Amendment religious rights, especially in this era of right-left cultural polarization. Could the state compel Catholic doctors to perform abortions, or require Catholic adoption services to place children with same-sex couples?

As Justice Kennedy noted in Obergefell, the “Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” If this applies to same-sex marriage, which isn’t mentioned in the Constitution, it certainly ought to apply to religious belief, which is there in black and white.

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