The Wedding Cake

Americans harbor many conflicting views on many subjects. Our right to freely express them is guaranteed in the American Constitution’s First Amendment. It is precisely this right that has enabled the LGBT community to convince an ever-growing number of our fellow citizens that they should be entitled to the same protections under the law as anyone else.

Public discussion of conflicting opinions in a spirit of civility and mutual respect is an important aspect of developing consensus as well as tolerance for other beliefs and ways of living. While we are required by the Civil Rights Act of 1964 to set aside our personal opinions and tastes when we open for business to serve the public (the non discriminatory public accommodations requirement), our personal views are much more likely to be meaningfully changed by persuasion than by legal requirements. “There-will-be-no-winners-in-the-supreme-courts-wedding-cake-case/2017/12/04/”

In 2012, Charlie Craig and David Mullins, a same-sex couple, walked into Masterpiece Cakeshop in Lakewood Colorado to order a cake for a celebration of their wedding. Jack C. Phillips, the owner and cake designer of the shop, refused to bake it on the grounds that he opposed same-sex marriage. In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, now before the Supreme Court, Colorado’s Civil Rights Commission maintains that Mr. Phillips has violated the state’s public-accommodations law, which forbids discrimination against LGBT customers. The case pits the Constitution’s First Amendment protection of the right to free speech against the right of everyone, including gay and lesbian Americans, to the equal protection of the law on non discriminatory public accommodation. The Supreme Court must now decide how to balance these two rights.

Phillips argued that making him create a cake that celebrates a same-sex wedding would violate his First Amendment rights to free speech and free exercise of religion, by forcing him to express a message, and celebrate an event, that runs against his beliefs.  Messrs. Craig and Mullins argued that the cake shop had discriminated against them.  How can the rights and needs of each best be satisfied in our society of diverse beliefs?

There were many other cake shops happy to bake the desired cake. Why would Messrs. Craig and Mullins want to give their business to an unwilling baker? What goal was served by challenging the baker’s refusal in court? Did they think that a judge could force the baker to change his views about same sex marriage? Really? Public attitudes toward LGBTs have improved dramatically in recent years including attitudes toward same-sex marriage because of persuasion, not because of legal coercion. In fact, in 1996 legal coercion was used to prevent same-sex marriage with passage of the Defense of Marriage Act (DOMA). The Supreme Court fortunately overturned it in June 2015 in the case of Obergefell v. Hodges. What ever the Supreme Court decides, the LGBT community looses from this case. George Will: “A-cake-is-food-not-speech-but-why-bully-the-baker”/2017/12/01/

Everyone should worry about the threat of state-compelled speech, says gay marriage supporter Andrew Sullivan:  “It always worries me when gays advocate taking freedom away from other people. It worries me as a matter of principle. But it also unsettles me because some gay activists do not seem to realize that the position they’re taking is particularly dangerous for a tiny and historically despised minority. The blithe unconcern for the First Amendment in the war on ‘hate speech,’ for example, ignores the fact that, for centuries, the First Amendment was the only defense the gay minority ever had — and now, with the first taste of power, we are restricting the rights of others in this respect? Ugh. Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you.” New York Magazine December 8, 2017.

The LGBT community should look first to improved understanding and then to tolerance of diversity. The courts are the last place to search for a workable balance between free speech and conscience and equal treatment of everyone under the law.

Arizona and Religious and Personal Liberty

A successful society balances the interests of individuals and society. In the area of personal liberty and public tolerance, all low hanging fruits (all win – win policies) have been picked. Thus remaining discussions of the best boundary between the sphere of private belief and behavior and social behavior involve trade offs that are more difficult to evaluate. This is illustrated by the recent controversy in Arizona over the bill just vetoed by Arizona Governor Jan Brewer that would have allowed businesses to deny service to gay and lesbian customers on religious grounds.

The point I want to make here (yet again) is that our society functions best when it favors persuasion over coercion (voluntary action over legal compulsion). Should a professional photographer who objects to same sex marriage be required by law to accept business from a same sex couple to photo graph their wedding? My first reaction to this question was why in the world would the couple at issue want to give their business to a bigot. Examples of my earlier discussions of such issues are: https://wcoats.wordpress.com/2013/08/30/liberty-and-the-overly-prescriptive-state/  https://wcoats.wordpress.com/2010/04/18/when-values-clash/

I abhor prejudice of any sort both on moral and on economic efficiency grounds. People should be judged on the basis of factors relevant to the situation. A job applicant should be judged on the basis of whether she has the best qualifications for that particular job, rather than whether she is Irish, Ghanaian, Muslim, Christian or Korean (though if the job is to wait on tables in a Korean restaurant, being Korean might be relevant). I strongly believe that it is more effective to persuade people of this view than to legislate it (just as I think persuading teenagers and others of the dangers of some drugs would be more effective than has been our very costly and damaging War on Drugs). For one thing businesses that express their prejudices in the market place pay a price in the form of less qualified, more expensive employees and/or fewer customers.

I am obviously a bit out of the mainstream on this as I shared Senator Barry Goldwater’s reservations about the 1964 Civil Rights Act’s restrictions on the right of “public” business to choose their customers (especially Title II on public accommodations). I prefer, both for philosophical and pragmatic reasons, the legal approach taken with regard to the Boy Scouts of American. As a “private” organization they are entitled to whatever membership criteria they want. Public discussion and evolving attitudes is gradually leading them to amend their membership requirements, which now allow gay boys to join. This is a better way to bring about that result in my view in our very heterogeneous society.

That said, if we must have laws against discrimination, gays and lesbians surely must be given equal protection under those laws.  E. J. Dionne makes some good points in today’s Post: “Arizona’s anti-gay bill hurts religious people” Washington Post /2014/02/26/