The United States government filed a “friend of the court” brief last week in the pending case of Masterpiece Cakeshop v. Colorado Civil Rights Commission—the “religious bakery” case.
I’m not indifferent to the stakes of the case. Since 1987, when I read the late Randy Shilts’s brilliant book, And the Band Played On, I’ve been committed—intellectually and emotionally—to same-sex marriage. But extremist though I am, I find Masterpiece Cakeshop a hard case.
The issue is whether a state that has chosen by statute to forbid anti-gay discrimination in public businesses may apply that law to a bakeshop that holds itself out to customers as a source of custom cakes. The baker is Jack Phillips; he is represented by the Alliance Defending Freedom, a Christian religious-freedom organization. ADF’s petition introduces Phillips thus: “His faith teaches him to serve and love everyone and he does. It also compels him to use his artistic talents to promote only messages that align with his religious beliefs.” In its brief, the United States adds, “Phillips … believes that he can honor God through the creative aspects of his business, including the design and creation of custom wedding cakes.”
LGBT people are demanding, and winning, recognition of their worth and equality in every sphere. That struggle has sometimes come into conflict with religious teachings. I remember Jimmy Carter, as a candidate in 1976, responding negatively to a question about gay rights by saying, “I can’t change the teachings of Christ. I can’t change the teachings of Christ!” Time and prayer have led Carter to a new understanding of those teachings; but of course they did so in the context of a society where individual religious faith is respected. And many of the faithful, even those of good will, have not arrived where Carter has.
For the couple, marriage itself is a profound spiritual and religious event. A wedding marks the moment when a private relationship becomes public; when two individuals become one family; when that family is accepted into a community. It is a moment of acute vulnerability. The ceremony may embody a couple’s deepest beliefs.
Wedding cakes are an aid to that celebration—not the other way around.
After Phillips refused their order, David Mullins and Charlie Christian were left with the memory that, because a stranger thought they should not be allowed to marry, a business advertised as open to the public would nevertheless not accept their money.
The case, then, is about more consciences than one, about more faiths than that of Phillips.
That awareness is missing from the government’s brief. Indeed, the government begins by noting that in 2012, Colorado “itself did not acknowledge the validity of the union [state law] sought to compel petitioners to celebrate.” Mullins and Christian planned to marry in Massachusetts, then celebrate with friends in their home state. The legal point is correct—Colorado did not recognize and celebrate same-sex marriage until 2014. But the government’s implication—that what counts is that the union is of lesser constitutional value than the opposite-sex marriages then recognized by the state—is callous and crabbed.
Even lawyers may choose to show grace to the other side. The U.S. government showed none in this brief.
ADF has asked the court to find that the Colorado statute violates the First Amendment in two ways; first, as a violation of the “free exercise of religion,” and, second, as a violation of the “freedom of speech.” The government, however, argues the case as a pure free-speech matter.
The First Amendment’s speech clause has become the atomic bomb of conservative advocacy. A stunning variety of practices—from refusing health warnings on cigarette packs to giving money to politicians—have been found by some courts to be matters of free speech. In this analysis, it would not matter that Phillips’s objection is religious; instead, the government asks a constitutional exemption to civil-rights laws regardless of the underlying motive.
Baking a custom wedding cake is “speech” approving same-sex marriage, the brief says, because a reasonable observer “could fairly infer that [the cake’s] creator at least does not oppose his clients’ marriage.” It argues that “the government may not compel an unwilling expressive group or event to admit speakers at odds with its message.” As examples, it cites a Supreme Court case holding that the organizers of Boston’s St. Patrick’s Day parade need not allow an Irish American gay group to march, and that the Boy Scouts could expel a gay scoutmaster because tolerating his presence would tacitly endorse homosexuality. Not mentioned is that the argument would extend “expressive group” to include a for-profit public accommodation rather than a non-profit like the parade association or the Scouts.
It’s fair to ask why a bakery is a parade.
Under the proper standard, the brief argues, musicians, bakers, or photographers may not be required by state civil-rights laws to perform for same-sex weddings. Not to worry, though: The rule won’t apply when “a hotel is forced to provide a table and chairs,” because in that case the hotel “acts as a mere conduit to effectuate another’s expression,” and the chairs do not “suggest to a reasonable observer that the provider supports the ceremony or event.”
Does a “reasonable observer” detect the baker’s name and approval from the cake’s presence on plates? (I may be unusual; I have no idea who prepared the sweet treats for either of my two weddings, and don’t recall any guest asking.) Beyond that, why doesn’t the rule apply to hotels or restaurants? What if the couple renting the hotel space wishes to post a banner on the wall saying, “CONGRATULATIONS ADAM AND STEVE”? Why wouldn’t the “expressive group” rule permit the hotel or restaurant owner to exclude not only same-sex weddings but really any event—an inter-racial marriage, for example, or a celebration of career women or a meeting of Muslims—to which its owners have a “free speech” objection, secular, political, or just plain mean?
Beyond that, the government suggests that states have very little business protecting same-sex couples, or gay people generally, anyway. State “laws targeting race-based discrimination may survive heightened First Amendment scrutiny,” the brief says. That’s because the Supreme Court has decided that combatting even private racial discrimination “is the most ‘compelling’ of interests.”
Discrimination against gays, or against same-sex couples, the brief says, has not been approved by the court as “a uniquely compelling interest.”
To repeat, according to the U.S. government, racial equality may—or may not—be important enough to trump the qualms of an “unwilling expressive group.” That invites future First Amendment challenges to all kinds of racial protections.
Beyond that, it explicitly relegates sexual orientation to a lesser category of protection. And it conspicuously omits any mention of equality between the sexes.
Traditionally, states have had broad power to prevent discrimination in employment, housing, and public accommodations on bases they choose. (Colorado’s Anti-Discrimination Act, for example, forbids discrimination by “disability, race, creed, color, sex, sexual orientation, religion, age, marriage to a co-worker, national origin and ancestry.”) It’s hard to understand why federal judges should decide which groups deserve legislative protection and which do not.
Equality has been part of the American vision for a long time—often dishonored in practice, but at least held up as aspiration. The government brief says to me that the Trump administration disagrees with that vision. As the Georgetown Law professor Martin Lederman recently pointed out, this appears to be the first time ever—in 10-20 such cases—that the U.S. government told the Court it supports a constitutional exemption from an anti-discrimination statute.
Who should win this case? I am torn. For almost as long as I’ve supported marriage equality, I’ve been a scholar of religious freedom. My first writings on the subject told the story of two lone peyote worshipers whose faith was outlawed entirely by the state of Oregon. These two Davids fought Goliath to a draw—but were defeated, in the end, by an insensitive Supreme Court majority. I know the ache such a rejection can stir.
The command of conscience may seem wrong or irrational to outsiders, but it is nonetheless a deep part of identity. At the same time, civic equality is the matrix of any truly democratic society—and that equality is under siege from people who want to subordinate and stigmatize gay people and their families. I dread any rule that relegates their concerns to second-class status.
But I am convinced the Supreme Court isn’t the place to settle the issues it raised. The right way to resolve conflicts of multiple conscience is the way it was done in 1964, and has been done in many states since then.
To quote the Court’s newest justice in a different context, “It’s called legislation.”
The issue in Masterpiece Cakeshop is the application of a state’s civil-rights ordinance. Colorado’s civil-rights commission concluded that Phillips refused the cake order because Mullins and Christian are gay, not because of his theology of marriage. State statutes like this one represent a positive aspect of America’s history of inequality by law. The forerunners of Colorado’s law date back to the 19th century; as early as 1920 (while the South was still tightening its segregation laws), a Colorado court held, over strenuous dissent, that a shoe-shine stand could not exclude African American customers.
But civil-rights statutes, state and federal, differ widely in what establishments they cover and what exemptions they provide. The Civil Rights Act of 1964, for example, generally prohibits discrimination on the basis of “race, color, religion, or national origin.” But it carves out a set of exemptions intended to accommodate individuals, small businesses, religious groups, or individual landlords. What if, after losing in the state court, Phillips had instead of heading to the Supreme Court, gone to the legislature and asked for a provision of state law that would cover his business? There would undoubtedly have been controversy and anger on both sides; but eventually everyone involved might sit down and work out exactly how to deal with this genuine clash of beliefs and identities. That process would likely create a better solution than this ham-fisted Supreme Court, and its friend Jeff Sessions, is likely to fashion.