SCOTUS Gay Wedding Cake Decision—Victory for Free Expression

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In 2012, a gay Colorado couple walks into a bakery. They ask to have a special cake made to celebrate their upcoming nuptials. The baker refuses, saying his religious beliefs don’t allow him to acknowledge or facilitate same-sex marriage.

He does, however, say that he’ll sell the couple an off-the-shelf wedding cake. Unacceptable; the couple go to the state’s Civil Rights Commission, which rules that this is improper discrimination. The baker—with strong backing from the conservative Christian community—appeals, and today, six years later, the baker has won.

While honorable gay groups like the National LGBT Bar Association are dismayed, this is NOT really a nightmare victory favoring discrimination. There’s actually something fundamentally good about this decision, although you have to squint a little to see it.

The Supreme Court ruled to protect free expression, finely distinguishing illegal discrimination from protected private choices.

That’s because the baker’s commercial activity—selling off-the-shelf wedding cakes—was in fact equal for all couples. You want one, he’ll sell you one no matter who you are. It was when the baker was asked to express himself artistically that he drew the line and said no. In America, you can’t force someone to create an artistic, political, or other private presentation that expresses a point of view. Even if we find the baker’s position ignorant or destructive, we don’t want the government compelling anyone to state a point of view with which they don’t agree.

If you’re a musician, you must sell sheet music to everyone, equally. You can’t be forced to compose a song celebrating the end of abortion rights. If you’re a painter, you must sell brushes to everyone, equally. You can’t be forced to paint a picture celebrating Nazis killing Jews.

While the baker’s lawyers wanted to approach this case as one of forced artistic expression (the position of the amicus brief filed by a group of “cake artists” from around the country), the Supreme Court framed it as a matter of freedom of religious belief.

Remember, the baker claimed that requiring him to create a cake for a same-sex wedding violated his religious beliefs—as HE defined them. Once again, the Founders’ exceptionalism around religion creates a terrible quandary for the rest of our rights. This is a serious sickness at the heart of our democracy, and it isn’t going away.

Delusions of instructions from Napoleon—you get no special legal protection. Insistence on following instructions from alien beings—no special legal protection. Devotion to ideas of the dead coming back to life, and an invisible deity that controls the outcome of high school football games—you get special legal protection.

As long as you can claim that your beliefs are organized into a “religion,” step right up and get your special legal protection.

Your religious beliefs don’t even have to be right. After all, Jews, Muslims, Christians, Hindus, Buddhists, and Sikhs can’t all be right about their deity. At most, one of these groups is right, and all the others are wrong. Either the one true god is Allah OR Jehovah OR Jesus (or Jesus’ father, don’t get me started). They can’t all be. But all three beliefs (and others) get special legal protection.

America continues to struggle with the implications of valorizing religious belief over ordinary belief or nonsense. And since virtually all organized religions are obsessed with limiting sexual expression, sexuality will predictably continue to be the field of this struggle. Given America’s tormented feelings about sexuality, that makes this problem even more complicated.

We’ve seen the religious belief vs civil rights vs free expression rumble in arenas such as birth control; sex education; adult entertainment; fertility technologies; and of course gay people’s rights. We can confidently predict that two future battlegrounds will involve transgenderism and virtual reality.

By the way, here are some interesting notes about the Masterpiece Cakeshop case:
~ When the original incident took place in 2012, gay marriage was NOT legal in Colorado.

~ The state civil rights commission had required the baker and his employees to undergo “comprehensive staff training,” and to keep records of any refusals of service for two years.

~ The decision was written by Justice Anthony Kennedy, who has been responsible for the Supreme Court’s decisions backing gay rights, including the landmark 2015 ruling legalizing gay marriage. In this ruling he said “these disputes [about religious belief] must be resolved…without subjecting gay persons to indignities when they seek goods and services in an open market.”

Our cherished First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It was meant to prevent the creation of a law demanding that everyone follow the President’s religion, as was customary in monarchies throughout the world at that time.

It’s hard to believe the Founders meant to elevate religious ideas above others—but in America, the most religious of all wealthy and educated countries, believers have successfully created two centuries of law based on this destructive, nonsensical idea.

That’s the real problem, not the wedding cake of an innocent gay couple, or the sincere delusions of a pious baker.

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