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.