Will civility be baked into the court’s wedding cake decision?
The U.S. Supreme Court has agreed to decide if a conservative Christian baker can refuse to make a wedding cake for a gay couple, which begs the question of why we shouldn’t allow businesspeople to deny service to anyone for any reason.
After all, isn’t the right to hate a fundamental liberty, and expressing that hate protected by the First Amendment? When can the government force the owner of a public accommodation, such as a hotel, restaurant or bakery, to suppress his or her sincerely held religious beliefs in the name of civil rights?
Next year the Supreme Court is going to tell us.
The court will hear a case brought by Jack Phillips, a Colorado baker who specializes in wedding cakes. He refused to work for a gay couple, saying that baking them a cake would recognize their marriage, which contradicts his Christian beliefs. It’s important to note that the couple did not ask him to write anything or apply a design to the cake, only to bake one.
Colorado law forbids owners
of public accommodations to deny service to anyone based on their race, color, disability, sex, sexual orientation, national origin, ancestry, creed or marital status. The Colorado Civil Rights Commission told Phillips he was violating the law, a ruling he has taken to the Supreme Court.
The case has two prongs, as attorneys like to say. The first is that making a wedding cake is an artwork, unlike a loaf of bread, and the state would violate his First Amendment right to freedom of expression if it compelled Phillips to create an artwork. The second argument is that his religion condemns homosexual weddings, so forcing him to participate in one violates his freedom of religion.
The importance of this case should not be underestimated. Small businesses across the country have refused to serve homosexuals citing religious beliefs, and the issue has become a cause celebre in conservative and religious circles. Conservative Christian leaders consider any effort to outlaw discrimination based on sexual orientation or gender identity to be an attack on their religious liberty.
“Laws that provide special protections based on ‘sexual orientation,’ ‘gender identity or expression’ result in the harassment and punishment of people with deeply held religious beliefs,” according to talking points distributed by Focus on the Family, a Christian activist group. “People of faith are marginalized and crimi- nalized by sexual orientation and gender identity laws, forced to acquiesce to a secular, hostile ideology.”
If the case seems clearcut, take a moment to reverse the roles. After the Phillips case became news, a Christian activist went to a pro-gay baker and asked for a cake that said “God hates gays” along with an X through an image of a same-sex couple. That baker refused to make the cake, and the customer complained to the Colorado Civil Rights Commission that he’d suffered religious discrimination.
Give credit to Focus on the Family, though, which supported the pro-gay baker’s right to refuse to make the cake. It’s easy to imagine a dozen more scenarios where a business may want to deny service to a customer, beginning with a neo-Nazi demanding that a Jewish hotelkeeper host a German heritage convention focused on the 1930s.
The federal Civil Rights Act of 1964 tried to balance the liberty to discriminate with the right to be free from discrimination. The public accommodations section only applies to hotels, motels, restaurants, theaters and other publicfacing businesses engaged in interstate commerce. But sexual orientation and gender identity are not protected by federal law, so the Phillips case challenges the laws in 22 states that bar discrimination against those groups. Texas is not one of them.
Chip Babcock, a Houston-based partner at Jackson Walker with decades of First Amendment appeals experience, told me the court would trigger a rash of lawsuits if it finds that a business can cite religious beliefs in justifying discrimination. The court is unlikely carve out an exception only for homosexuals or transgender persons, so the impact could be far-reaching.
“It’s a damn slippery slope, and it’s hard to know where the court could draw the line,” he said. “Could a Jewish baker refuse to make a cake for a Muslim wedding, or vice versa?”
The fact that the gay couple did not ask Phillips to write anything on the cake may be the crux, Babcock said. Phillips argues that just baking the cake would have violated his freedom of expression, but the court could decide that bakers can only refuse to apply words or images, not deny service altogether.
As someone who relies on freedom of expression for my work, and as the author of a book on Texas’ history of systemic bigotry, part of me prefers allowing people to proclaim their prejudices. I’d like to know which businesses hold beliefs that I abhor, and the internet would share that information far and wide.
Our country, though, is already too divided. And respecting the dignity of all Americans is a fundamental tenet of our democracy. Civilizations require civility, and requiring people engaged in public commerce to behave according to community standards is not too much to ask.