Masterpiece Cakeshop Supreme Court Case: Protecting Both Gay Rights and Religious Freedom

In one form or another, cakes have been a sweet dessert that have been used to celebrate birthdays, anniversaries, and weddings. You can tell when times are contentious and polarized when cake becomes a theme fought over in a Supreme Court case. This brings us to the oral arguments that the Supreme Court are to hear today for the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The premise behind the case is that a same-sex couple, Charlie Craig and David Mullins, went to Masterpiece Cakeshop in 2012 to buy a custom wedding cake. The owner, Jack Phillips, refused to create wedding cake for same-sex couples due to his religious beliefs. Although another baker offered to bake Craig and Mullins a wedding cake, the couple decided to file an anti-discrimination complaint under the Colorado Anti-Discrimination Act. The complaint escalated to the point where the Supreme Court is answering the question of whether the baker had his freedom of speech or religion violated per the First Amendment. There is more information and analysis from the SCOTUS Blog, but what I would like to explore is which side has more merit and what implications this has going forward.

The concern of those in support of the defendant is that allowing for this sort of discrimination will open the floodgates to remove anti-discrimination laws and allow for a "constitutional right to discriminate." Let's look at the discrimination more specific to the case and then let's go more broadly. A wedding cake is not a key component of a wedding. Even if you argue that a cake were that vital to a wedding, Craig and Mullins could have found a different baker. With nearly two out of three Americans support same-sex marriage (see below), it is conceivable that they could have found another baker. As a matter of fact, another baker offered to provide the couple a wedding cake at no charge.

This brings up another question: should Phillips be coerced to bake a cake for a same-sex wedding, even though his religious view is that marriage is between a man and a woman? If the answer is "yes" and anti-discrimination laws end up being interpreted in such a fashion, then the government would also be able to compel a Jewish baker to bake a non-kosher cake with a swastika for a neo-Nazi wedding or a neo-Nazi event. An African-American woodcutter could be compelled to create a wooden cross for a KKK rally, or a staunch Democrat caterer cater for a Trump rally. It would mean that Facebook could not ban white supremacists from posting racist dribble. Whether or not the Supreme Court rules that baking a cake is an artistic expression protected under the First Amendment (see arguments for and against), what worries me is whether the government has the right to compel an individual to produce something that violates their conscience.

I made this point three years ago when discussing price discrimination: producers have a right to produce their good or service for whomever they like. If a proprietor refuses to serve a certain clientele, then that is their poor business decision to make. In 2017 America, there are plenty of bakers that will take the business of same-sex weddings because profit motive. If a Christian baker refuses to serve a same-sex couple, that is their right. The reverse is also true. Take a look at what happened earlier this year. A gay coffeehouse owner in Seattle kicked out Christian anti-abortion activists from his place of business. Regardless of how you feel about abortion or Christianity, it was the gay proprietor's choice to not serve the Christian activists.

The ultimate question is how we find the balance. This is a tricky Court case because the Supreme Court needs to balance two major components of a free society. On the one hand, we need to have freedom of religion, conscience, and association. After all, it was the pursuit of that freedom that was the basis of founding the United States. At the same time, civic equality is a necessity for a free, democratic society. Yes, it is true that more and more people are supporting LGBT rights. Situations like the one that precipitated this Supreme Court case will thusly become less prevalent. Conversely, individuals within the LGBT community have gone through more than plenty of discrimination. Although there has been general progress towards civic equality, there are legitimate concerns that we, as a society, take steps backwards. That is the quandary: I don't want a society where the government coerces people to act against their own conscience, and I don't want a society with discrimination against an entire group of people.

I pondered this very question of how to strike this balance between religious freedom and civil liberties five years ago. The summarized version is that "your religious rights end where another's rights begin." What this means in this case is that Phillips does not have to bake cakes for same-sex weddings. Although I strongly disagree with Phillips' views on same-sex marriage, it is his right to hold those views. At the same time, Phillips does not have the right to force the government to stop same-sex marriages of two consenting adults simply because those are his religious beliefs. This is where we draw the line in a civilized, pluralistic society. Phillips has the right to bake cakes for whichever clientele or whichever occasions he so chooses. If he wants to lose out on making money, that's his own decision. Craig and Mullins, as two homosexual adults, have a right to enter a consensual contract of marriage. This is how we respect both the civil liberties of LGBT people and religious freedom: protecting individual rights. I also believe getting to know people who are different from you goes a long way in understanding where others are coming from, even if you don't agree with them.

How should the Supreme Court strike this balance? The gay rights movement already won the intellectual argument and is winning the moral high ground. This country does not need anti-gay backlash from this case, which is another reason why coerced nondiscrimination [from the Supreme Court] is not the best course of action in the long-run. I think that both sides have valid arguments, but that the Court should rule in favor of Phillips. If the Supreme Court rules in favor of Phillips, it should narrow the scope of the ruling and the exemption (e.g., wedding-related businesses, commercial institutions in competitive marketplaces) as much as possible so that it doesn't infringe on the rights of LGBT individuals. That way, we can protect everybody's rights instead of throwing people and their right to life, liberty, and pursuit of happiness under the bus.