The gay times roll, but the Supremes stop the mu­sic

The Washington Times Weekly - - Commentary - BY WES­LEY PRUDEN

The Supreme Court can some­times twist it­self into a pret­zel to write law. The court on Mon­day up­held again the Con­sti­tu­tional prin­ci­ple that free­dom of speech in­cludes the right not to speak, but it all but apol­o­gized for say­ing so. The court ruled on nar­row grounds, but by an in­ter­est­ing mar­gin, that a Colorado baker was within his rights to de­cline to bake a cake cel­e­brat­ing the le­gal union of two ho­mo­sex­ual men.

Jus­tice An­thony Kennedy three years ago wrote into the Con­sti­tu­tion that the le­gal in­sti­tu­tion of mar­riage — es­tab­lished thou­sands of years ago across ev­ery cul­ture and ev­ery re­li­gious faith — must in­clude such ho­mo­sex­ual unions. This time he wrote the opin­ion that the baker, Jack Phillips of Master­piece Cakeshop, can­not be re­quired to bake a cake to cel­e­brate a union that his faith tells him is wrong. A “sin,” to use a quaint word.

“The neu­tral and re­spect­ful con­sid­er­a­tion to which [Mr.] Phillips was en­ti­tled was com­pro­mised here,” Jus­tice Kennedy wrote. “The [Colorado] 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.” In­deed, one of the civil rights com­mis­sion­ers likened be­ing de­prived of a piece of wed­ding cake to slav­ery and the Holo­caust. Jus­tice Kennedy in­vited gay lit­i­gants to try again.

“The out­come of cases like this in other cir­cum­stances must await fur­ther elab­o­ra­tion in the courts,” he wrote, “all in the con­text of rec­og­niz­ing that these dis­putes must be re­solved with tol­er­ance, without un­due dis­re­spect to sin­cere re­li­gious be­liefs,” A lit­tle dis­re­spect might be all right, just noth­ing “un­due.”

The tone of the opin­ion reeks of a valedictory. Mr. Kennedy wants ev­ery­body, par­tic­u­larly the Catholics (of whom he is one) and other con­ser­va­tives to know that he’s not such a bad sort as all that. He can re­tire now with honor in the eyes of the laven­der lobby and red-blooded con­ser­va­tives as well. Or so he may imag­ine. He only an­gered nearly ev­ery­one, for ei­ther go­ing too far or not far enough.

The opin­ion cut so close to the bone that nearly all jus­tices could ap­prove it, all ex­cept So­nia So­tomayor, who promised at her con­fir­ma­tion hear­ing to “rule as a wise Latina” and has faith­fully kept her prom­ise, and Ruth Bader Gins­burg, whose seat on the court tilts so far to the left that when the pho­tog­ra­pher shows up for the an­nual pho­to­graph of the High Court she oc­ca­sion­ally falls out of the pic­ture. Jus­tice Clarence Thomas voted with the ma­jor­ity, but wanted an opin­ion cov­er­ing more ter­ri­tory.

No­body loses very much by the way the opin­ion was writ­ten. The case be­gan when two gay blades, on their way to a hitch­ing post in Mas­sachusetts, went into the Master­piece Cakeshop in Lake­wood, Calif., to or­der a wed­ding cake for a wed­ding re­cep­tion to fol­low in Colorado. Jack Phillips, whose re­li­gious con­vic­tions were well known in the com­mu­nity, told them, “I’m sorry, guys, I can’t do that.” He of­fered to bake them an­other kind of cake, just not a wed­ding cake.

“What fol­lowed,” says David Mullins, who was ei­ther the bride or the groom, “was this hor­ri­ble preg­nant pause while what was hap­pen­ing sunk in, and we were mor­ti­fied.” Mr. Mullins and his very sig­nif­i­cant other, Char­lie Craig, duly filed a com­plaint with the Colorado Civil Rights Com­mis­sion. Soon it was pretty clear that what the bridal cou­ple wanted was not a cake, but an is­sue to lit­i­gate. The com­mis­sion de­cided that the bridal cou­ple’s rights must be pro­tected, and the baker has no rights to pro­tect. If he felt “mor­ti­fied,” tough. He should get a life, pre­sum­ably with an­other guy in it.

Bash­ing bak­ers was catch­ing. When Aaron and Melissa Klein, own­ers of a bak­ery in Port­land, Ore., de­vout Chris­tians both, de­clined to bake a cel­e­bra­tory cake for a les­bian cou­ple, the Oregon Bureau of La­bor and In­dus­tries said they were in vi­o­la­tion of a state law man­dat­ing LGBTQ suf­fer­ers cer­tain rights in pub­lic ac­com­mo­da­tions. The Kleins were fined $135,000 and or­dered to pay the cou­ple “emo­tional dis­tress” dam­ages. The Kleins lost their busi­ness, but their “emo­tional dis­tress” doesn’t count.

This is not the end of the af­fair. Other cases are per­co­lat­ing through the le­gal sys­tem, one or two of them up to the Supreme Court. These cases, too, are not about wed­ding cakes, or pub­lic ac­com­mo­da­tion, or even about be­ing left out of wed­ded bliss. Gays want the larger cul­ture to say that their “life­style” de­mands cel­e­bra­tion by all. Dis­senters must be bro­ken on the wheel. Re­li­gious faith can be no ex­cuse. Jus­tice Kennedy sees that, in spite of his new self. The three per­cent must rule, what­ever the cost.

The com­mis­sion de­cided that the bridal cou­ple’s rights must be pro­tected, and the baker has no rights to pro­tect. If he felt “mor­ti­fied,” tough.

Wes­ley Pruden is edi­tor in chief emer­i­tus of The Times.

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