Lawfare and Gay Marriage

A Colorado appellate court ruled earlier this month that Jack Phillips, the evangelical owner of Masterpiece Cakeshop in suburban Denver, had violated the rights of a gay couple when he declined on religious grounds to design and bake a custom wedding cake for them in 2012 -- two years before same-sex marriage was even legal in the state. (The couple had actually married in Massachusetts.) The court ordered Phillips to “take remedial measures, including comprehensive staff training” on how conscientious objection must give way to anti­discrim­ination law in these situations, and to “file quarterly compliance reports” with the state on this mandated retraining.

In July, the Commissioner of the Oregon Bureau of Labor and Industries upheld fines of $135,000 against another small bakeshop, Sweet Cakes by Melissa near Portland, and its devout Christian owners, Aaron and Melissa Klein, for declining to bake a cake for a lesbian commitment ceremony in 2013.  (As in Colorado, same-sex marriage was not yet legal in Oregon at the time.) Commissioner Brad Avakian, regularly met and communicated with a gay rights group supporting the lesbian complainants while their case was pending before his department, publicly expressed sympathy for their position, and told the press that “the goal is to rehabilitate” the Kleins. Perhaps in the service of this “rehabilitation” his decision imposed not only crippling financial penalties but a gag order designed to stop them from making statements such as “this fight is not over. We will continue to stand strong.”  Meantime, protests outside the bakery forced it to close, though Melissa still operates a smaller business out of their home while Aaron supports their five children by working as a trash collector.

These are the latest in a series of cases around the country in which government authorities, acting under state or local gay rights laws, have ordered creative professionals such as photographers, florists, and cake designers with religious objec­tions to same-sex marriage to provide customized services for or at these weddings or face potentially ruinous liability and dystopian reeducation dictates. The Supreme Court declined last year to review the case of a New Mexico photographer, but one of these other cases in the pipeline is likely to eventually make it to the court. The decision there may turn on the vote of swing Justice Anthony Kennedy, the court’s gay rights champion who nonetheless has joined opinions holding that gay civil rights claims did not trump the First Amendment speech and associational rights of the Boy Scouts or of St. Patrick’s Day Parade marchers.

These cases do not involve the sale of commercial goods at a place of business but rather the dragooned rendering of personal creative services for, and frequently attendance at, sacra­mental ceremonies that offend the providers’ consciences. The small business and crafts people in the dock in these cases have not refused to seat gay people at lunch counters, or to welcome them into their shops and sell them film, floral bouquets, or pastries. In fact, all have said they would be happy to sell off-the-shelf products for same-sex weddings, and several had longstanding business relationships with the gay customers who sued them. But they don’t want to be compelled to use their creative talents to “celebrate something that offends [their] beliefs.”

The courts have said that this doesn’t matter; that refusal to service the same-sex wedding of someone you otherwise happily do business with is still discrimination based on sexual orientation because, in the words of the Colorado court in the recent case, “the act of same-sex marriage is closely correlated to… sexual orientation” in that it is “engaged in exclusively or predominantly by gays, lesbians, and bisexuals.” But by that logic aren’t a black carpenter who refuses to make the cross for a Klan rally, and a black photographer who refuses to come take pictures of the festivities, guilty of racial discrimination?  If they have no problem selling cabinets and cameras to whites generally, they are in the exact same position as those now having their livelihoods destroyed. Any attempted distinction boils down to an emotional response of “gays good; Klansmen bad,” and as fervently as one may agree with this visceral reaction it cannot be the basis for formulating a neutral legal principle.

Leading gay marriage proponent Andrew Sullivan has called these lawsuits “repellent” and “anathema.” I would go further and say that they are perhaps the most frightening assault on First Amendment rights since the end of Jim Crow in my childhood. Forcing anyone to affirmatively bear witness against his or her conscience has an Orwellian cruelty that makes it even more vile than negative restraints on freedom. This is why it has always been the hallmark of the most brutally totalitarian eras.

While conservatives have often argued these cases mainly in terms of religious freedom, the threat to artistic freedom is perhaps even more serious. If the state can commandeer wedding photographers, who provide their clients with commem­orative books, to celebrate gay marriage (as one Facebook commentator noted, “think about the implications of forcing someone to produce a book”), how big a slide is it to conscript­ing writers into the cause as well? If that seems dubious, consider that the lawyers bringing these cases argue that photographers, bakers, and florists forego their religious and artistic freedoms because they publicly offer their services in the commercial market. But so do most freelance writers (as Professor Eugene Volokh, a same-sex marriage supporter, has noted). And most lawyers. And for that matter most clergymen when they perform weddings, for which they typically charge a small fee to supplement their salaries. Consider also that much of this liti­gation seems to be driven not by gay couples who just happen to wander into the shops of evan­gelical bakers or florists, but by activists trolling to find and destroy them. It’s not far-fetched to imagine these activists looking to see which conservative Christian writers also advertise for commercial freelance work to make ends meet, and then swooping down like hawks. Before they do, though, and before they pursue more cases against bakers, they should consider that they’re setting a chilling and horrible precedent, and one that could just as easily be used to bludgeon liberals and gays.

Dennis Saffran is an appellate attorney and political and public policy writer whose work has appeared in City Journal, the New York Daily News, the New York Post and the Wall Street Journal.  He formerly headed the Center for the Community Interest, a public interest anti-crime group, and has been the Republican candidate for New York City Council in one of the city’s few competitive districts. 

A Colorado appellate court ruled earlier this month that Jack Phillips, the evangelical owner of Masterpiece Cakeshop in suburban Denver, had violated the rights of a gay couple when he declined on religious grounds to design and bake a custom wedding cake for them in 2012 -- two years before same-sex marriage was even legal in the state. (The couple had actually married in Massachusetts.) The court ordered Phillips to “take remedial measures, including comprehensive staff training” on how conscientious objection must give way to anti­discrim­ination law in these situations, and to “file quarterly compliance reports” with the state on this mandated retraining.

In July, the Commissioner of the Oregon Bureau of Labor and Industries upheld fines of $135,000 against another small bakeshop, Sweet Cakes by Melissa near Portland, and its devout Christian owners, Aaron and Melissa Klein, for declining to bake a cake for a lesbian commitment ceremony in 2013.  (As in Colorado, same-sex marriage was not yet legal in Oregon at the time.) Commissioner Brad Avakian, regularly met and communicated with a gay rights group supporting the lesbian complainants while their case was pending before his department, publicly expressed sympathy for their position, and told the press that “the goal is to rehabilitate” the Kleins. Perhaps in the service of this “rehabilitation” his decision imposed not only crippling financial penalties but a gag order designed to stop them from making statements such as “this fight is not over. We will continue to stand strong.”  Meantime, protests outside the bakery forced it to close, though Melissa still operates a smaller business out of their home while Aaron supports their five children by working as a trash collector.

These are the latest in a series of cases around the country in which government authorities, acting under state or local gay rights laws, have ordered creative professionals such as photographers, florists, and cake designers with religious objec­tions to same-sex marriage to provide customized services for or at these weddings or face potentially ruinous liability and dystopian reeducation dictates. The Supreme Court declined last year to review the case of a New Mexico photographer, but one of these other cases in the pipeline is likely to eventually make it to the court. The decision there may turn on the vote of swing Justice Anthony Kennedy, the court’s gay rights champion who nonetheless has joined opinions holding that gay civil rights claims did not trump the First Amendment speech and associational rights of the Boy Scouts or of St. Patrick’s Day Parade marchers.

These cases do not involve the sale of commercial goods at a place of business but rather the dragooned rendering of personal creative services for, and frequently attendance at, sacra­mental ceremonies that offend the providers’ consciences. The small business and crafts people in the dock in these cases have not refused to seat gay people at lunch counters, or to welcome them into their shops and sell them film, floral bouquets, or pastries. In fact, all have said they would be happy to sell off-the-shelf products for same-sex weddings, and several had longstanding business relationships with the gay customers who sued them. But they don’t want to be compelled to use their creative talents to “celebrate something that offends [their] beliefs.”

The courts have said that this doesn’t matter; that refusal to service the same-sex wedding of someone you otherwise happily do business with is still discrimination based on sexual orientation because, in the words of the Colorado court in the recent case, “the act of same-sex marriage is closely correlated to… sexual orientation” in that it is “engaged in exclusively or predominantly by gays, lesbians, and bisexuals.” But by that logic aren’t a black carpenter who refuses to make the cross for a Klan rally, and a black photographer who refuses to come take pictures of the festivities, guilty of racial discrimination?  If they have no problem selling cabinets and cameras to whites generally, they are in the exact same position as those now having their livelihoods destroyed. Any attempted distinction boils down to an emotional response of “gays good; Klansmen bad,” and as fervently as one may agree with this visceral reaction it cannot be the basis for formulating a neutral legal principle.

Leading gay marriage proponent Andrew Sullivan has called these lawsuits “repellent” and “anathema.” I would go further and say that they are perhaps the most frightening assault on First Amendment rights since the end of Jim Crow in my childhood. Forcing anyone to affirmatively bear witness against his or her conscience has an Orwellian cruelty that makes it even more vile than negative restraints on freedom. This is why it has always been the hallmark of the most brutally totalitarian eras.

While conservatives have often argued these cases mainly in terms of religious freedom, the threat to artistic freedom is perhaps even more serious. If the state can commandeer wedding photographers, who provide their clients with commem­orative books, to celebrate gay marriage (as one Facebook commentator noted, “think about the implications of forcing someone to produce a book”), how big a slide is it to conscript­ing writers into the cause as well? If that seems dubious, consider that the lawyers bringing these cases argue that photographers, bakers, and florists forego their religious and artistic freedoms because they publicly offer their services in the commercial market. But so do most freelance writers (as Professor Eugene Volokh, a same-sex marriage supporter, has noted). And most lawyers. And for that matter most clergymen when they perform weddings, for which they typically charge a small fee to supplement their salaries. Consider also that much of this liti­gation seems to be driven not by gay couples who just happen to wander into the shops of evan­gelical bakers or florists, but by activists trolling to find and destroy them. It’s not far-fetched to imagine these activists looking to see which conservative Christian writers also advertise for commercial freelance work to make ends meet, and then swooping down like hawks. Before they do, though, and before they pursue more cases against bakers, they should consider that they’re setting a chilling and horrible precedent, and one that could just as easily be used to bludgeon liberals and gays.

Dennis Saffran is an appellate attorney and political and public policy writer whose work has appeared in City Journal, the New York Daily News, the New York Post and the Wall Street Journal.  He formerly headed the Center for the Community Interest, a public interest anti-crime group, and has been the Republican candidate for New York City Council in one of the city’s few competitive districts.