THE GAY WEDDING CAKE CASE
by Bob Wheeler
This past Tuesday the U.S. Supreme Court heard oral arguments in the case of a Colorado baker who refused to bake a wedding cake for a gay couple. The baker, Jack Phillips, was accused of violating Colorado’s public accommodations law and was sanctioned by the state’s Civil Rights Commission.
Phillips’ lawyer, Kristen Waggoner of the Alliance Defending Freedom, argued that the State of Colorado had violated her client’s First Amendment rights of free speech and freedom of religion. Much of the discussion in court, then, centered on whether baking a cake is a form of speech, and whether other forms of artistic expression, such as photography and floral arranging would also qualify as speech. The state contends that Phillips was engaged in discrimination, pure and simple.
We think that several important distinctions must be made. First of all, discriminating on the basis of sexual orientation is not the same thing as discriminating on the basis of race. Race is an inherited and immutable biological trait; homosexuality is a behavior pattern which involves conscious decisions and moral choice. There is no solid evidence that it is hereditary or biologically determined. By adding sexual orientation to its list of protected classes, the State of Colorado is treating a behavior pattern as though it were the same as a biological characteristic, and is then penalizing anyone who objects to that behavior on moral grounds.
Secondly, Mr. Phillips can claim that he is not discriminating against homosexuals simply because they are homosexuals. If they want to come into his shop to buy coffee and donuts he would be more than happy to serve them. What he is refusing to do is to provide material support for a specific activity that he deems morally objectionable.
Moreover it is one thing to grant homosexuals the freedom to marry each other; it is another thing to force someone else to act against his own conscience to support the wedding. The first is consistent with the principle of individual freedom; the second is not.
The state, of course, can and should regulate the behavior of individuals with each other. But it should be very careful about infringing on the deeply held religious beliefs of its citizens. Religion deals with transcendent truths and provides the foundation for public morality. To force its citizens to choose between God and the state is to invite civil disobedience on the one hand and to erode public morality on the other.
In the case at hand the legalization of same sex marriage represents a radical departure from 3,000 years of Judeo-Christian teaching on the subject of human sexuality. And freedom of religion is one of the bedrock principles of American democracy. Many of the immigrants to these shores came precisely to escape from religious persecution at home. The colonies of Rhode Island and Pennsylvania were early experiments in religious freedom. And freedom of religion was enshrined in the Free Exercise Clause of the First Amendment to our Constitution.
The Virginia Bill of Rights (1776) declared that “religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience . . .” To which James Madison added, “The religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate” (“A Memorial and Remonstrance,” 1785).
The implications of a ruling against the baker in this case are staggering. By allowing the state to dictate morality to the church it would open the door to religious persecution. But the implications are even more far reaching than even that. The state, by placing itself above God, comes amoral and tyrannical, not bound by any higher moral authority. The Twentieth Century witnessed the horrors of the godless state at work. And ultimately society itself becomes lawless and unruly as it loses all moral restraint.
George Washington summed it up well in the Farewell Address of 1796:
“Of all the dispositions and habits that lead to political prosperity,
religion and morality are indispensable supports. In vain would
that man claim the tribute of patriotism who would labor to subvert
these great pillars of human happiness – these firmest props of
the duty of man and citizens. The mere politician, equally with
the pious man, ought to respect and to cherish them. A volume
could not trace all their connections with private and public felicity.”
A ruling in the Phillips case (Masterpiece Cakeshop Ltc. V. Colorado Civil Rights Commission) is not expected until June, 2018. It remains to be seen what the court will do in this. Justice Anthony Kennedy, who could very well cast the deciding vote, seemed skeptical of the state’s position, stating at one point that “Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” It remains to be seen how the court will rule on this. But if the state can force a Christian to support the LGBT agenda it can force anyone to support any philosophy or ideology, and then we will have ceased to be a free nation.