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Wednesday, June 6, 2018

Supreme Court Rules, 7-2, for Colorado Baker

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The Supreme Court ruled 7-2 on Monday in favor of a Colorado baker who refused to make a wedding cake for two gay men, as the New York Times reports:
The court’s decision was narrow, and it left open the larger question of whether a business can discriminate against gay men and lesbians based on rights protected by the First Amendment.

The court passed on an opportunity to either bolster the right to same-sex marriage or explain how far the government can go in regulating businesses run on religious principles. Instead, Justice Anthony M. Kennedy’s majority opinion turned on the argument that the Colorado Civil Rights Commission, which originally ruled against the baker, had been shown to be hostile to religion because of the remarks of one of its members.

At the same time, Justice Kennedy strongly reaffirmed protections for gay rights.

“The outcome of cases like this in other circumstances must await further elaboration in the courts,” he wrote, “all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
Read the full ruling here.

There was some confusion of thought among the learned justices, it seems. This dizzying schematic diagram shows their various opinions, dissents, and concurrences.

The gay couple, Charlie Craig and David Mullins, appeared on CNN yesterday:

Baker Phillips appeared on the Today show yesterday:

What I say:  First, the ruling applies only to this particular case, and turns on the technicality of some careless remarks by members of the Colorado Civil Rights Commission when they were considering the baker's case.  So nothing is settled yet, and there is no reason to get excited one way or the other.

Second, as shown by the divisions among the justices themselves, the larger question is a thorny one, and it will be difficult to weigh the competing claims of religious belief and sexual orientation in order to come up with a rule of law that will satisfy everyone, one that all reasonable people of good will can in good conscience support.  As Justice Kennedy said in the majority opinion,
any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.
I well recall in the legally segregated South of my childhood that every restaurant, cafe, motel, and ice cream stand had a prominent sign behind the cash register:  We reserve the right to refuse service to anyone.  As a kid, I thought nothing of it; only much later, as an adult in the post-civil rights era, did I realize that the message was code for "We don't serve Negroes, so don't even ask."

Of course it would be ridiculous, not to say unconscionable, for any business today to deny service to anyone on account of race, or religion, or ethnicity, or for almost any other reason except being drunk and disorderly, or unable to pay.  And in fact, I would venture to say that most business owners of any kind are too eager to get some greenbacks in the till to worry about such things.  As long as your credit card is good and you don't break up the furniture, you're good to go in our consumer nation, right?

And the laws should rightly penalize any business that discriminates against a paying customer for no good reason:  whether you are selling lettuce or light bulbs, cars or candy, hamburgers, hotel rooms, or helicopter rides, your personal beliefs and opinions about the customer are irrelevant, and you treat everyone the same, selling the same goods or services to all comers (the exception being certain sales prohibited by law, such as selling booze to minors, etc.)  This is a settled principle in our modern society, and rightly so.

However, when the goods sold are not essentially the same for all customers, personal preferences notwithstanding (a shirt is a shirt is a shirt; a cup of coffee likewise, and so on, and so on), then perhaps there is room for discussion--and especially, it seems to me, when communication is involved, or artistic talent (for at bottom, Art is always Communication of some sort, whatever else it may be).  And if communication is involved, then the First Amendment, which we all revere, comes into play--and if that guarantees our freedom to speak our minds as we will, does it not also strongly imply the right not to speak what we do not will?  Forced speech is not free speech, is it?

Let us get down to cases:

  • Suppose that you are a printer, and someone wants you to print up a thousand copies of a flyer for a KKK rally, something you find utterly abhorrent.  Should the law require you to fill that order?
  • Or, say, you are a sign maker, and a very good one too, the old-fashioned kind who uses actual paint and brushes:  if someone comes into your shop and asks for a sign saying "Death to Jews," must you (a Gentile, as it happens, with no anti-Semitic feelings) paint it or face the penalties of law?
  • Or again, if you are a seamstress specializing in custom-decorated clothing, and a biker brings you his leather jacket wanting "Fuck the Police" embroidered in great big letters on the back, should the law compel you to fulfill his request?

We could multiply examples ad infinitum here, but I think the point is clear enough:  if you are in the business of selling communication in one form or another, should the law protect your scruples, whether based on religious beliefs or not--or force you to violate your conscience, and ruin you if you fail to comply?  We are not talking here of great corporations selling housewares or hardware or trips to Tahiti, or the Moon--we are talking of individuals and small business owners whose livelihood is at stake.  People who are just trying to make a living and get by, like everyone else.  People who are, in the vast majority of cases, not bothering you or working against you, and not even thinking about you until you interfere with them.

Make no mistake: I sympathize strongly with Charlie and David. As my truckbuddies know from reading my story, I take a passionate, very personal interest in marriage equality, but not, I hope, an unreasonable one.  Today we have liberty, we have justice, we have the right to marry, something almost inconceivable forty years ago when I came out.  Let us rejoice in this magnificent turn of history, and not lose sight of the main thing:  our common humanity.  Let us not forget that we live in society with others, who also have a right to liberty and equal dignity under the law.  The search for a wise, humane balance of competing rights and liberties is and has been the eternal question of American democracy from the very beginning.

Frankly, your Head Trucker is inclined to side with the baker.  In the grand scheme of the universe, a cake is a silly little thing, a trivial thing, a ridiculous thing: here today and eaten tomorrow. If I were in the market for a wedding cake, I would certainly much rather take my business to someone who would bake it gladly and gratefully, rather than force another person to do it against his will and in violation of his conscience, which would do me and you and all of us no good at all, breeding resentment and even hatred. As history has shown times without number, in all ages and climes and countries, it is but one little step to go from oppressed to oppressor.

Of course, others may disagree with me, including some of my truckbuddies.  But we must all find a way to get along peaceably--as we always have, eventually, in our history, usually through the high art of compromise. How shall we decide such things, and where should the line be drawn?  And when I say "we," I mean straight and gay, religious and atheist, all the many colors of the human rainbow:  for every story has two sides, if not more, and every voice must have its say.  Is that not the first principle of democracy?

The Supreme Court has passed on the question, for now.  So come, let us reason together.


Tim said...

Excellent summation Justice Manley. Most of us, when younger, will have experienced bullying at school in one form or another, for whatever reason. Your response is one of the first ‘hard’ lessons in growing up; from 'he who runs away lives to fight another day’ to becoming the self-same thing you are fighting, a bully. This couple chose the wrong fight, it’s that simple. Time for all concerned to learn, grow-up, and move on. Just sayin’.

Davis said...

Well said both of you.

Frank said...

A well reasoned and well articulated commentary, Russ.

I also have had some questions regarding these conflicts regarding businesses that deny their services on the basis of religious beliefs and you have provided an opportunity to think "out loud" about the issue.

I am not sure that the examples you gave (KKK, anti-Semitic signs, biker clothing) are analogous; perhaps they are, but there is some difference. Each of those involves some sort of (implied or stated) hate speech or hate directed at a specific group. The "customer" in each case can reasonably expect some resistance from a prospective business owner because they are asking for a product that could be viewed as illegal or unethical.

In the case of a wedding cake or invitations or photography or catering, etc. for a same-sex wedding, prospective customers are not asking for something that is illegal or threatening to an individual or group. A couple planning a wedding have a reasonable expectation that a business providing wedding services is subject to all public accommodation laws and standards. (Unless otherwise stated). Such services and products are not illegal or unethical. There is nothing offensive about a wedding cake decorated with roses made of sugar.

For a couple to enter a business that provides rather generic wedding services and be told that they are essentially unworthy sinners (which is what is conveyed, if not in those exact words) and so will not be accommodated, is, in my opinion, an affront to the couple's dignity and civil rights.

If a business does not wish to cater to gay marriages on the basis of religious beliefs, perhaps they should state that in their advertising and signage and then let the market decide. But do not have an open door and then deny some folks entrance because your services somehow imply your "participation" in a celebration you do not condone.

The business folks who are acting like "victims" here are not the victims. As I said, they are subjecting a class of citizens to indignities and stepping on their civil rights. Customers who enter their shop are not preventing them from practicing their religion. I don't care how "artistic" a cake is, baking and decorating it is not a religious symbol or ritual, nor is baking, decorating or selling it, "participating" in the couple's marriage or the celebration of marriage.

I believe the onus is on the business owners to decide whether they can provide services to all or refrain altogether from offering public services.

It seems to me that the real danger here is that a faction of fundamentalist, evangelical, anti-LGBT "Christians" have taken it upon themselves to establish and enshrine their beliefs as some kind of national religion that over-rides all secular laws and societal norms. Other religions need to stand up to their attempt to monopolize the conversation.

Perhaps the couple who were denied services picked the wrong business or the wrong fight. Perhaps they should have found out more about the cake baker and gone somewhere else. Personally, I wouldn't purchase services from someone blatantly anti-gay, especially for a gay wedding. And I probably wouldn't have taken it to court.

But I do think the question remains unsettled and there will come a more clear-cut case one of these days.

Just a note about Leon's and my wedding: we got our very excellent cake at Costco for $18. They didn't inquire whether it was for a gay wedding and likely didn't care.

Frank said...

And there's this: https://www.lgbtqnation.com/2018/06/hardware-store-posts-no-gays-allowed-sign-supreme-court-cake-decision/

Frank said...

And then this: https://www.lgbtqnation.com/2018/06/court-just-ruled-religious-exemptions-wedding-invitation-case/

Russ Manley said...

Thanks Tim and Dave for your comments, and thanks Frank for your very thoughtful response, which proves, as I said in my post, that the issue is a thorny one, difficult to weigh and decide fairly for all.

It just seems to me so silly - shameful, even - to invoke the police power of the state over something so small and trivial as a cake. And even more shameful to interfere with someone's livelihood for that reason.

And to make my point clear, it is ridiculous on *both* sides of the coin.

I have written of the shattering experience I had when my partner Cody died unexpectedly without a will, leaving me stranded in a small Texas town far out on the prairie with no friends, relations, or recourse to the laws. I feel very sure of asserting that the lack of legal protections for me, or any other gay widower, was a grave, immoral injustice that should not exist - anyone's "religious" beliefs to the contrary notwithstanding - and happily, that deficiency has since been corrected by the Supreme Court, and rightly so.

In my view, however, the gross indignity of that experience in no way compares to a simple refusal to bake a cake, and while I completely understand Charlie and David's thinking, and sympathize with them, I myself would be ashamed to bring suit for such a trivial thing. A cake can be had at any grocery store in any town - as yours was, Frank - and probably at most other bakeries. I would simply have taken my business elsewhere.

On the other hand, while I - who spent some years in a fundamentalist church - can also understand the baker's thinking too. The early Christians were brutally tortured and executed for simply refusing to sprinkle a mere pinch of incense on the altar of the emperor's genius. And down through the ages, Christians and other religionists have similarly invoked the claims of conscience over many other essentially trivial acts and words that signify very little to nonbelievers. Protestant blue laws - Catholic fish on Friday - Kosher and halal foods - Sikh turbans - and we could go on and on all day and night listing the many tiny little things that loom so large in the minds of those who believe that the great God of the universe concerns himself with such trivial details of human life.

Still, the baker would do better, in my own opinion, to loosen his scruples and just bake the damn cake. The wedding will go on without his help, God does not care, and he has lost a sale.

But religionists are, to use the legal lingo, a "protected class" under our Constitution, and in recent years, gay people have become "protected" too (though here I tread very lightly, being no lawyer and uncertain of how far such protection extends). So we have two classes whose sincere beliefs and desires are entitled, or should I say required, to be respected by the law - when and where those clash, I suppose it will require the wisdom of a Solomon to sort things out.

In my post, I suggested some possible lines of thought on which such a sorting might proceed, with deference and respect to the feelings of all parties. It remains to be seen whether the Supreme Court, in its august wisdom, will see fit to agree with me when such a case presents itself again.

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