The same-sex wedding cake debate
Our view: Colorado baker’s case is not about the First Amendment
When the Supreme Court in 2015 recognized a constitutional right for same-sex couples to marry, it was a huge step forward for equality, but the ruling didn’t resolve enduring religious divisions over gay marriage.
One such battle arrives at the Supreme Court today, a case in which Colorado baker Jack Phillips cites his religious and free expression rights for refusing in 2012 to design a custom cake for a gay couple’s wedding.
It is a landmark battle that, in essence, pits the baker’s right to practice his Christian faith against the rights of Charlie Craig and David Mullins to be free from discrimination as they go about their lives.
In front of the justices, the arguments will be couched in the complexities of the First Amendment’s guarantee of free expression: Phillips argues that his artistic cakes express ideas about marriage and are entitled to full constitutional protection. But the battle also comes down to a simple idea enshrined in American law and values: When you open a business in this country and sell to the public, you agree to abide by public accommodation laws.
On those grounds, the Colorado Civil Rights Commission and a state appeals court ruled against Phillips. And unless the Supreme Court decides to turn its back on that core principle of equality, it should do the same.
For the court to rule otherwise would open the door to discrimination by all sorts of vendors who claim artistic expression: photographers, clothing designers and florists to name a few.
The First Amendment’s guarantee of freedom of religion and expression are fundamental, but they are not unlimited. An old saying, “Your right to swing your arms ends just where the other man’s nose begins,” is apropos. Phillips has an absolute right to his religious beliefs, but when the practice of his religion infringes on the rights of others to equal treatment, it goes too far.
In the past, the Supreme Court has set limits on freedom of speech and religion. The court has repeatedly ruled that constitutional rights do not nullify neutral laws on everything from racial equality to taxes. An Amish farmer, for example, refused to pay Social Security taxes for workers based on his religious belief that the community and not the government should care for the elderly and needy. The Supreme Court ruled unanimously in 1982 that by becoming an employer, the farmer freely entered into commercial activity and accepted certain limits on the exercise of his beliefs. And so it is with Phillips.
Forty-five states have public accommodation laws that prohibit discrimination on the grounds of race, gender, ancestry and religion. Twenty-two also prohibit discrimination on the basis of sexual orientation. Colorado is one.
Phillips and his lawyers try to make a distinction: The baker isn’t discriminating against gay people because he’s willing to sell them anything off his store shelves, but he is not willing to use his artistry to celebrate their marriage. No doubt he is sincere.
Even so, the distinction does not change the fact that Mullins and Craig and others will be summarily turned away, if the court rules for Phillips. Of course they can get a cake somewhere else, but that’s not the point. They were treated as second-class citizens when Phillips turned them away.
In passing the Civil Rights Act of 1964, the Senate recognized that discrimination “is about the humiliation ... a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color.” Or, today, because he loves someone of the same sex.
Allowing that sort of unequal treatment is not what America is about. The public will be better served if the Supreme Court puts a stop to it now.