The long fight over the baker in Colorado who refused to make a wedding cake for a gay couple has been decided by the Supreme Court. I was pretty sure this (ultra-right-wing) Court would rule against the gays, and they did, but there were some surprises.
First, the ruling was very narrowly drawn. The majority opinion, written by Anthony Kennedy makes it clear that a business cannot discriminate against any of the “protected groups” defined in the Civil Rights Act of 1964…nor the additional groups defined by many states. So why was the baker allowed to discriminate?
As Kennedy put it, the Colorado Civil Rights Commission was “disrespectful” to the baker. They disparaged his religious views, and even suggested that he was using them as an excuse for his bigotry. Shame on them!
Now I do not condone their impolite behavior, but I thought we were talking about the rule of law here, not civil propriety. Does rudeness change the validity of a law?
A few other surprises: Two of the liberals on the Court voted with the majority, but Clarence Thomas, although he voted with the majority did not sign on to the majority opinion. He wrote a separate opinion, joined by Gorsuch that claimed that the Court did not consider the baker’s right to free speech. Apparently, they think that baking cakes, along with corporate money (think Citizens United) is speech. The two dissenters in the 7-2 vote were Ginsburg and Sotomayer. Their dissenting statement: “When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding — not a cake celebrating heterosexual weddings or same-sex weddings — and that is the service (the couple) were denied.” Ginsburg went on to say that “neither the commissioners’ statements about religion nor the commission’s disparate treatment of other bakers who refused to make cakes disapproving of same-sex marriage justified a ruling in favor of [the baker] Phillips.”
The baker insisted that he would be happy to provide any other baked goods the gays wanted to buy, but the wedding cake conflicted with his religious views. He also said that his cakes were “works of art” and this somehow exempted them from the laws.
“I didn’t want to use my artistic talents to create something that went against my Christian faith,” he said in an interview with CNN last year, noting that he has also declined to make cakes to celebrate Halloween.
“A custom wedding cake is not an ordinary baked good; its function is more communicative and artistic than utilitarian,” Solicitor General Noel Francisco argued. “Accordingly, the government may not enact content-based laws commanding a speaker to engage in protected expression: An artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.”Now I never thought of bakers as artists. Craftsmen, maybe, but the skill required to bake and decorate a cake seems fairly trivial when compared to, say, a skilled carpenter or even a plumber or electrician. Those jobs require a helluva lot more skill and knowledge of building codes, construction methods, etc.
“This case is about more than us, and it’s not about cakes,” Mullins said in an interview last year. “It’s about the right of gay people to receive equal service.”
It all comes back to the Religious Rights Restoration Act, a loophole torn in the Civil Rights Act allowing people to discriminate if their religion dictates it. I guess I have a misconception about our national government. I thought it was secular. I thought all citizens were to be treated equally before the law. I didn’t know that the Free Exercise Clause means that religious believers are entitled to special privileges.
Apparently, some religion-dominated states think this is true, and have passed laws “protecting” employees who refuse to perform services that conflict with their religious beliefs. Like pharmacists who refuse to dispense birth control pills. These laws prohibit firing or discriminating against them for not doing their jobs.
The Constitution does not provide any explicit or even implicit guidance on these things. The conflict between the Establishment Clause, which prohibits any endorsement of religion and the Free Exercise Clause, which says people must be free to practice their religion, are opposing tenets that our society must sort out and make reasonable compromises. Clearly, churches cannot claim immunity to secular laws (although some zealots claim that God’s law trump’s Man’s law). Human sacrifice is murder, even if it is done at the command of a deity. No matter how religious you are, don’t try it. You will end up in jail…or in a lockup for the criminally insane.
So where should the line be drawn? What sort of illegal behavior should be excused on the basis of religious belief?
The guiding premise, it seems to me, should be to maintain an orderly society that is viewed as tolerant and just, where people feel they are all treated equally. Allowing businesses or individuals to deny services to some group(s) of people contradicts the whole idea of equality.