Cape Breton Post

Why court needs to decide gay wedding case

Minorities must be protected from the whims of their neighbours

- Emma Teitel

When I got married last summer, my wife’s seven-year-old cousin decided, with some delight, to celebrate the event by sticking his entire hand into the double-decker masterpiec­e at the dessert table with our names on it. This is one way to sabotage a gay wedding cake.

Another, less messy, way is to refuse to bake it in the first place. This is the preferred method of Colorado baker-turned-hero-of-the-religiousr­ight, Jack Phillips.

You may have heard of him. In 2012, when David Mullins and Charlie Craig tried to order a custom cake for their upcoming wedding from Phillips’ bakery, Masterpiec­e Cakeshop, he refused to take the order, stating that baking a custom cake for a same-sex wedding would go against his Christian beliefs. Phillips could make the betrothed something else - a birthday cake, a batch of cookies, a confection crudely moulded into the shape of an acoustic guitar. But a custom cake for a samesex wedding? Forget about it. Unfortunat­ely for Phillips, Mullins and Craig didn’t. They took him to court instead.

Fast forward five years, and Phillip’s refusal to provide a service to gays that he regularly provided heterosexu­als is the subject of a United States Supreme Court case being debated this week. So far media reports suggest that SCOTUS is divided on the case, a division that raises an important question: If you rule in favour of Phillips’s religious freedom to refuse a specific service to gays, what’s to stop a slew of other businesses from discrimina­ting against minorities on the same grounds?

In other words, anyone, regardless of personal bias, would probably be compelled to agree that Phillips vs. Gay Wedding Cakes is a case in which the ultimate ruling will have consequenc­es that reach far beyond a single bakery.

But not everyone is anyone. In a recent column titled “How Not to Advance Gay Marriage” New York Times columnist David Brooks, who supports same-sex marriage, makes the remarkable argument that Mullins and Craig shouldn’t have taken Phillips to court at all. This is because the court system, a la Brooks, is “dehumanizi­ng. It ends persuasion and relies on the threat of state coercion. It is elitist. It takes a situation that could be addressed concretely on the ground and throws it up, as this one now has been, to the Supreme Court, where it will be decided by a group of Harvard and Yale law grads.”

Sort of makes sense, right? That’s what I thought the first time I read it. Then I thought, wait, you know what’s dehumanizi­ng? Being refused a service because the person across the counter thinks your relationsh­ip is an abominatio­n. But Brooks isn’t finished yet. What does he think Mullins and Craig - those uppity gays - should have done instead of seeking help from the state? They should have taken the “neighbourl­y approach.”

“The neighborly approach,” Brooks writes, “would be to say: ‘Fine, we won’t compel you to do something you believe violates your sacred principles. But we would like to hire you to bake other cakes for us. We would like to invite you into our home for dinner and bake with you, so you can see our marital love, and so we can understand your values. You still may not agree with us, after all this, but at least we’ll understand each other better and we can live more fully in our community.’”

First of all, a couple planning a wedding, gay or straight, does not have time to host a let’s-reform-the-bigot-next-door dinner. There are invitation­s to send, flowers to arrange, and yes, cakes to order.

Second of all, would Brooks be advocating neighbourl­y outreach in place of legal interventi­on if the wronged party was an interracia­l couple, or even for that matter, a Jewish one.

A person like Phillips, who is willing to fight a lengthy court battle and collect donations from like-minded Americans to defend his right to refuse a service to gays, is not going to shed his prejudice as the result of an evening of queer hospitalit­y.

This doesn’t mean that reaching out, i.e. “meeting people where they’re at” as the cliche goes, isn’t a valuable approach to - as that other cliche goes “changing hearts and minds.” I think meeting people where they’re at and changing hearts and minds is important work. But it’s exhausting work. And furthermor­e, it’s activism. It’s not the work of a couple planning a wedding.

The year, for God’s sake, is 2017, not 1997, or even 2007. People have had quite a while to get used to the idea of gay marriage and its fallout - that is, none. If you don’t want to bake wedding cakes for gays, don’t bake wedding cakes. If you don’t want to sell something to gay people, or Black people, or Jewish people, sell nothing.

But what’s really insidious, under the reasonable wistfulnes­s of Brooks’s column, is the suggestion that what transpired at Masterpiec­e Cakeshop was a misunderst­anding between people of otherwise good will, who could and should have worked out their difference­s among themselves.

But there were not two parties of equivalent good will involved. One party thought they should be treated the same as everyone else. The other party thought not. This is why a small altercatio­n involving three people and a cake should be debated in the supreme court, as opposed to somebody’s living room or bakery, just as same sex marriage itself should be debated in a court, rather than decided by popular vote: to protect minorities from the whims of their neighbours.

That’s reasonable.

“The year, for God’s sake, is 2017, not 1997, or even 2007.”

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