Not Worth a Cake?

The U.S. Supreme Court heard one of the most closely watched cases of its term earlier this week. The dispute involves a Christian baker from Colorado who refused to make a wedding cake for a same-sex couple. Jack Phillips, owner of Masterpiece Cakeshop, says his religious convictions about marriage require him in good conscience not to provide wedding-related services to gay couples. Phillips also makes the more far-reaching defense that his cakes are not simply part of a business transaction but artistic expressions protected by the First Amendment.

The couple suing Phillips, David Mullins and Charlie Craig, filed a complaint before the Colorado Civil Rights Commission, which enforces the state’s public-accommodations law. Since 2008, Colorado has specifically prohibited businesses from discriminating against customers on the basis of sexual orientation—along with disability, race, creed, color, sex, marital status, national origin, and ancestry. The commission ruled that by selling wedding cakes to straight couples but not gay couples, Phillips violated the public-accommodations law. Colorado courts upheld that decision and rejected the bakery’s First Amendment arguments. In denying that Phillips’s First Amendment rights were infringed, these legal rulings in Colorado lined up with other rulings across the country in similar cases involving florists, banquet halls, and photographers.

Masterpiece Cakeshop v. Colorado Civil Rights Commission involves a complex set of vital, sometimes competing, rights at play in a pluralistic society. Religious freedom and respect for conscience are bedrock values essential to maintaining a healthy democracy. This commitment to religious liberty should transcend partisanship and narrow ideologies. A just nation also has the responsibility to safeguard the basic human rights of all people, including our family members and neighbors who are gay, lesbian, bisexual, and transgender. And freedom of expression is a principle that separates the United States from countries whose citizens suffer under the heels of dictators. How we navigate and balance these rights and responsibilities, legally and socially, is the hard work of democratic citizenship.

This work is getting harder every day. The public square has balkanized in ways that make prudent deliberation about the common good more difficult. A growing body of sociological research shows that Democrats and Republicans, liberals and conservatives, aren’t just separated by ideological differences. A yawning cultural gap separates them, too. People on the left and right live in different neighborhoods, watch different movies, drive different cars, and rarely if ever speak to someone who has different political views. Media echo chambers confirm our own version of reality. Civil discourse that grapples with nuance and complexity is hard to find. But people of faith should be able to model something better.

What is an authentically Christian response to this case? Many white evangelicals and conservative Catholics feel Christians are besieged by a hostile secular culture. A Public Religion Research Institute survey in February underscored this. When asked their views about which Americans face discrimination, 57 percent of white evangelical Protestants said there is “a lot of discrimination” against Christians in the United States today. Only 44 percent said the same was true about Muslims. Despite this sense of victimhood, Christian conservatives don’t have a monopoly on claims about religious liberty. Their claims are not absolute, either, and the millions of faithful people who value religious liberty and insist that LGBT rights are human rights should not be ignored.

A lazy cultural narrative pits caricatures against each other: godless secularists vs. religious Americans. The reality, of course, is much different. In an amicus brief submitted to the Supreme Court by the United Church of Christ, the Baptist Joint Committee for Religious Liberty, the Presiding Bishop of the Episcopal Church, the Evangelical Lutheran Church in America, and the Chicago Theological Seminary—denominations and institutions with different theological views on same-sex marriage—Christian leaders emphasized that religious liberty itself would suffer if businesses were permitted to discriminate. “Colorado’s public accommodations law as applied here strikes the right balance between respect for religious liberty and the protection of individuals’ right to participate in the commercial marketplace free from discrimination,” they wrote. “The balance struck by Colorado ultimately promotes the cause of religious liberty and human dignity, in a manner consistent with our pluralist society.” My organization, Faith in Public Life, released a statement signed by more than five hundred Christian leaders that called for a discussion about religious liberty that rejects false choices. “While we hold different theological beliefs about the definition of marriage, we are united in our firm conviction that LGBT people should be treated fairly and equally,” the religious leaders affirmed. “Religious freedom should never be used as a justification for discrimination.”

The driving force behind the Masterpiece case is the Alliance for Defending Freedom (ADF), a legal juggernaut with deep pockets and close ties to Republicans in Congress and the Trump administration, and ADF counsel is representing Jack Phillips before the Supreme Court. As the investigative journalist Sarah Posner wrote in The Nation, ADF founder Alan Sears has said that “radical homosexual activists and their allies are looking for any opportunity to attack and silence any church that takes a biblical stand with regard to homosexual behavior.” Until very recently, Posner writes, the ADF “routinely trafficked in slurs against the LGBTQ community, consistently depicting LGBTQ people as promiscuous, uncommitted, and unfit to parent in dozens of its briefs opposing marriage equality.”

But now that marriage equality has won in the courts and in the culture (even a majority of Republicans under the age of forty support same-sex marriage), conservative Christian activists are using new tactics to chip away at LGBT rights. By making a First Amendment appeal, lawyers for Phillips recognize that such an approach could have more salience and be more persuasive than a strict religious-liberty argument. David Cole of the American Civil Liberties Union, a co-counsel in the case, deconstructed the free-expression argument in the New York Review of Books this month. “Likening its cakes to the art of Jackson Pollock and Piet Mondrian, Masterpiece Cakeshop claims that they deserve protection as free speech no less than Pollock’s canvases,” Cole writes. “But whether the cakes are artistic is beside the point. As an individual artist, Pollock would not have been subject to a public accommodations law and could have chosen his customers. But if he had opened a commercial art studio to the public, he, too, would have been barred from refusing to sell a painting because a customer was black, female, disabled, or gay.” Cathleen Kaveny, a Boston College professor and Commonweal columnist, thinks there are compelling First Amendment arguments in the case, but worries about an overly broad interpretation of the Court’s eventual ruling. “Every bakery is not a Masterpiece Cakeshop,” she said. “Not everyone is asking for a unique wedding cake to exemplify their soul. The distinguishing features of this case really limit its application. I worry a ruling for Masterpiece would be read as accommodating anyone who is engaged in creative work. But there is a big difference between a couture shop that creates the perfect wedding dress or a cake that incorporates the designer’s artistic vision and a boutique selling off the rack. David’s Bridal isn’t Vera Wang.”

These debates are not academic. Despite the seismic cultural shift in support for same-sex marriage over the last decade, LGBT people still face substantial discrimination. As shared in the amicus brief they filed, Lambda Legal detailed more than one thousand incidents of LGBT people being denied service in the United States. This demonstrates “an ugly truth,” according to the brief. “With disturbing frequency, LGBT people are confronted by ‘we don’t serve your kind’ refusals and other unequal treatment in a wide range of public accommodations contexts.” Only nineteen states and the District of Columbia have passed laws specifically protecting LGBT people in public accommodations.

As a Catholic with a platform as a writer, I take seriously the public demands of faith. From the abolition of slavery to the civil-rights movement to the resurgence of progressive faith activism in the Trump-era, religion has been and will continue to be a part of the civic fabric of our nation. Religious Americans on the right also recognize that their faith comes with public responsibilities, and progressive people of faith should not blithely dismiss their sincere convictions. But respecting the sincerity of a conviction from a faithful fellow citizen and codifying that conviction into a law governing a diverse society are two different things. As the late Justice Antonin Scalia, a conservative Catholic, noted in a 1990 case, laws of general applicability “could not function” if they were subject to nearly unlimited religious exemptions. Quoting from an 1878 decision, Scalia warned that such exemptions would “permit every citizen to become a law unto himself.”

Pope Francis describes religious liberty as “one of America’s most precious possessions.” We don’t honor religious liberty or the radical inclusivity of Christ by telling people made in the image of God that their love and commitment are not worth a cake.