The writer Andrew Klavan often says “err on the side of freedom and solve the problems that come along with it.”
In an un-narrow decision, the Supreme Court of the United States ruled 7-2 in favor of the Colorado baker who refused to decorate a wedding cake for a gay couple.
The baker in question did not refuse outright to serve gay couples. He explained that “to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.”
I don’t subscribe to the brand of Christianity which states without equivocation that homosexuality is a sin so unpardonable that the mere act of providing a piece of food for the wedding is tantamount to participation in sin. I don’t really understand it, and I imagine it’s quite easy for many to simply roll their eyes at the notion. I imagine it’s also easy for some to regard the holder of such beliefs with disdain.
Justice Kennedy, in his opinion, wrote that when “the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.”
Citing several statements made on the record by commissioners, Kennedy concludes that “The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
To quote one of the Colorado commissioners, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
Hidden in this attempt to conflate cake decoration with the genocide of millions is the slippery slope argument that many are making in wake of this decision.
Put more reasonably, the argument seems to go “if we allow someone to refuse to decorate a cake on the grounds of his religious convictions, what’s to stop other people from making similar claims as a justification for denying all kinds of people access to services?”
A common example, what’s to stop a restaurant from servicing a black man if the owner says it goes against his religious convictions?
While a solid majority of The Court ruled in favor of the baker, the decision of this case applies to a narrow set of circumstances. The baker was not refusing to service the couple entirely. His assertion, which the court agreed with, was that his First Amendment rights to free expression and free exercise of religion were being violated; the former through being compelled to use his artistic talents in creating a message with which he disagreed, and the latter through participating in a celebration that was in contrary to his religious belief.
In the baker’s own words, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”
This is not a matter of a business owner refusing outright to service gay couples, and it is not an endorsement of the Supreme Court for business to discriminate wholesale against protected classes of individuals.
Kennedy writes as much in his closing opinion by stating “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
In that light, I’d say the calls to alarm are overblown.
Yesterday’s decision was an err on the side of freedom: freedom of speech and freedom of religious expression. Now we have problems to go along with that.
In her dissenting opinion, Justice Ginsberg writes “The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”
I don’t know anything about the couple who brought this case to the Colorado Civil Rights Commission. Let’s assume that they are altogether decent citizens trying to make their way in America. It’s a problem when decent citizens are denied the services offered and available to anyone else not born with their immutable characteristic.
Another problem of freedom: when a business owner, due to deeply held religious beliefs, declines his services for a single matter, but is otherwise willing and happy to provide other services, and instead of being met with tolerance and understanding is met with vitriol and condemnation.
I’m grateful the Supreme Court ruled in favor of freedom. I don’t agree with the baker. I believe his views are outside of the mainstream.
I also know myself to be a lifetime possessor of ideas outside of the mainstream, and it’s heartening to see the right to live your life according to your deeply held views so strongly affirmed.