Last week, the U.S. Supreme Court heard oral arguments in the case Masterpiece Cakeshop v. Colorado Civil Rights Division. The issue in this case is whether a baker is compelled by law to bake a cake for a same-sex wedding ceremony; or can the baker legally refuse to participate in a same-sex wedding because it violates his religious beliefs.
Some of the argument focused on First Amendment free speech and expression claims. Does baking a cake for wedding constitute speech? If so, can one compel another to engage in speech making, and to engage in speech making that communicates a message that the speech maker fundamentally disagrees with? The argument also focused on the interpretation of anti-discrimination laws as applied to public accommodations. Can a business open to the public refuse to sell a product to someone based on that person’s identity?
The back and forth between the justices and the attorneys was very interesting to listen to.
I think, however, the issues surrounding this case should be framed differently. It seems to me that at the heart of this case is the notion of liberty. A person who runs a business should not be compelled to conduct business with someone if he does not want to. In this country, however, we now have anti-discrimination laws that apply to public accommodations, so there may be limits of the business owner’s liberty. Let’s examine this a bit more closely.
The same-sex couple who wants the baker to provide a cake for their wedding claims that the baker’s refusal to do so is based on their homosexual identity. This refusal, they claim, violates Colorado’s Anti-Discrimination Act. This is incorrect. The baker did not refuse to bake the cake based on the couple’s sexual orientation. We know this because the baker was happy to sell the couple other baked goods in the store. Also, when couples plan a wedding, they often involve family and friends in the process. Someone may be in charge of getting flowers. Another may have the responsibility to find a DJ or a band for the reception. It is possible that the married parents of, say, the bride may be asked to find a baker to provide the wedding cake. In this case, the married parents of one of the men could have gone to the Masterpiece Bake Shop to order the cake. The baker would have similarly told the parents that he would not provide the wedding cake. It would be difficult to charge the baker with discrimination based on sexual orientation given that the ones in the bakery ordering the cake were a married man and woman.
The baker simply does not want to use his talents to design a cake used for a purpose that he finds violates his conscience, no matter who requests it. The baker’s refusal does not amount to discrimination on account of sexual orientation.
The First Amendment protects the baker’s right to free exercise of his religion. To coerce the baker to engage in activity that is counter to his beliefs violates his right to free exercise.
Let us assume, for the sake of this discussion, that the baker did refuse to provide the cake for the couple on the basis of their sexual orientation and said so. That would violate the Colorado anti-discrimination law but it would not violate federal law. The Civil Rights Act of 1964 does not extend protections to individuals due to their sexual orientation. Also, I am fairly certain that no one in Congress in 1866 voted to propose the Fourteenth Amendment thought they we were providing legal protection for homosexuals on account of being homosexual. The same can be said of those in state legislatures who voted to ratify the Amendment.
The reason we have the Civil Rights Act of 1964 and the Fourteenth Amendment is because we wanted to protect the rights of people of African descent in the United States. Blacks were first brought to America nearly 400 years ago. They were brought here against their will and sold as slaves when they arrived. By the time of the 1860s, this would be the only home their descendants had ever known. By the 1960s, those descendants would be fully Americanized Americans. The primary goal of civil rights legislation of the 1960s was to integrate blacks into the fullness of American life. This included guaranteeing access to public accommodations. This guarantee is at odds with the liberty of those who own businesses. However, given the history of racial oppression and the potential of creating two tiers of citizenship by denying access to public accommodations, an exception to the liberty interest was made. Homosexuals do not have the same claim to this exception.
This brings us to June 26, 2015. On that day, the U.S. Supreme Court issued the Obergefell v. Hodges decision. This decision compelled states to recognize marriages between people of the same sex. This decision was not based on anything written or implied in the Constitution. This decision is why the Court is grappling with this issue of religious liberty and the “civil rights” of homosexuals today. Today the Supreme Court is dealing with a mess of its own creation. The can of worms the Court has opened could have and should have been avoided. The five members of the Court, led by Justice Anthony Kennedy, should never have voted to inflict the Obergefell v. Hodges opinion on the nation.