Supreme Court Rules, 7-2, for Colorado Baker

Embed from Getty Images

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.