Of Civil Rights and Wedding Cakes

Three years ago, when the Supreme Court declared that same-sex couples have a constitutional right to marry, one might reasonably have read into that ruling, Obergefell v. Hodges, a commitment to strict marital equality.  Already, however, the Court is being asked to bless a special privilege, created under local law, for the beneficiaries of Obergefell: a right on the part of partners in homosexual unions to sue those who offend them.

The case, currently pending, is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which heavy fines have been assessed against a small bakery whose owner, a Christian, declined to furnish a wedding cake for the ceremony of two men.  It illustrates pointedly the problems that arise when the ambiguous goal of nondiscrimination is elevated beyond its proper rank.  The case illustrates more than that, however, for a little reflection on the Supreme Court's options serves to bring into focus a serious problem, little remarked thus far, with Obergefell itself.

Suppose first that the justices decide to let the Colorado ruling and penalty stand.  The unfortunate baker will have to pay his fines, if he can, or suffer the bankruptcy of his business.  Fidelity to his religious conscience will have proved costly to him, indeed.

We might pause a moment to consider the oddity of this.  A legal duty to provide assistance to a religious ceremony, or to participate in one, might be easy enough to turn up in the pages of history.  But in the United States today?  In face of the prohibitions of the First Amendment?

The baker's adversaries protest that he is illicitly injecting his religious scruples into an inappropriate setting – into the non-religious exercise of their civil right to marry.  They contend that a mere commercial transaction, the purchase of a cake, is at issue. They characterize the Colorado nondiscrimination statute as a neutral law of general application, valid against religious objections under certain Supreme Court precedents.  They insist that the State of Colorado, having declared the baker's action a tort, is merely penalizing a wrongful infliction of emotional harm upon innocent persons.  Presumably, the pertinent officials of the State of Colorado agree with all this.

But the State cannot compel everyone to agree.  The owner of Masterpiece Cakeshop, for one, most emphatically disagrees.  The State has therefore undertaken to educate him, quite forcefully, as to the perversity of his religious opinions and the unwarranted aggression inherent in his actions.

The State of Colorado, that is to say, has taken up the position of a magisterial teaching authority.  Colorado officials have not only adjudged an important element of Christian doctrine irrational, but begun to suppress that doctrine's public utterance or observance.  It is hard to argue that religious liberty is being respected here.  It is not hard at all to argue that Colorado has undertaken to establish an official and compulsory orthodoxy on the topic of human sexuality.  Sexual morality and sexual behavior are core concerns of every society, and therefore of every religion.  Can public officials, nonetheless, by fiat and in pursuit of conformity, strip these most sensitive subjects of the religious significance with which history has invested them?

I, for one, will be surprised if the justices of the Supreme Court ignore the establishment clause and seek some way to fit what Colorado has done into the Court's doctrine of free exercise.  Given the many tangles the Court has already embedded in those troublesome bodies of law, however, perhaps they will.

On the other hand, suppose that the Court decides to strike down the Colorado ruling.  In doing so, the justices would be recognizing that someone's alleged irrationality – a label some of them have incautiously ascribed to certain opinions about homosexual behavior – cannot suffice to silence him.  The citizen who can prove that his opinions, across the board, are never less than fully and carefully reasoned, never tainted by prejudice or passion, is more than just rare; he is nonexistent.  If the public square is to be cleansed of all irrationality, it will become a sparsely populated place.

Surely, moreover, the authors of the First Amendment did not intend to exclude from its protection religious beliefs and exercises that some people, even a majority, perhaps, consider not only offensive, but absurd.

So far, so good.  The State of Colorado has perhaps simply overreached in the zeal of its officials for the new order of things, and the justices may well consider it their constitutional responsibility to correct the error.  But if they do so, then they invite awkward questions about Obergefell itself, in which the Court invalidated the traditional legal and religious definition of marriage.  There, after all, the justices allowed no weight or standing in American law to the opinions that moved majorities of voters in numerous states to maintain the longstanding idea of marriage as the union of male and female.

So which is it to be?  Is criticism of homosexuality, on religious or secular grounds, entitled to any public respect or accommodation?  If the baker's civil rights are violated when he is penalized for expressing his opinion, what, then, about the civil rights of millions of citizens in numerous states?  Why were their opinions, as citizens, as they endorsed and maintained a historical a law of marriage for their states, inadmissible?  If the Court chooses to respect the baker's fear of sacrilege in Masterpiece Cakeshop, then the justices will need to explain how Masterpiece and Obergefell are consistent.  In explaining that, they must do what they will not permit Colorado to do.  They must act as a magisterial teaching authority, competent to assess the rationality of various elements of religious tradition and desacralize them where appropriate – despite the free exercise clause.

The justices will need to explain why, appearances to the contrary, they did not begin establishing, in 2015, an official American orthodoxy as to the vital and hotly contested topic – the religious topic – of sexual morality and behavior.

No clairvoyance was needed three years ago to foresee, following ObergefellMasterpiece Cakeshop and similar litigations.  To the extent that these shoots off the main branch were predictable – and to the extent that they twist the justices up in logical tangles – might Obergefell itself be tainted by irrationality?  Bad reasoning can surely find a lodging in the minds of millions.  It can surely be found in any legislature.  Alas, it is no stranger to the exalted chambers of the Supreme Court of the United States, either.  Jumping too quickly to label an opinion with which we disagree irrational is itself a form of irrationality – no less so than assuming too readily that our own opinions are unimpeachable.

These difficulties point toward a confusion that, for decades now, has been making a mess of our constitutional jurisprudence of religion.  That is the notion that a government of original and comprehensive jurisdiction, one that addresses the full range of human problems and concerns, can be religiously neutral.  We speak of the separation of church and state, and it is a phrase that can have a rough usefulness in certain contexts.  But when we push that phrase farther, understanding thereby a clean separation of religion and politics, at all levels and on all topics, we go seriously astray.

Sexual morality and sexual behavior, in particular, have always been subjects of religious legislation.  It was easy not to notice this, so long as almost everyone, devout or indifferent, simply took for granted the unique legitimacy of marriage, for example, or the condemnation of homosexuality and prostitution.  Now that such once almost unconscious pieties are widely challenged, the old assumptions lose their power, and the old statutes begin to change.  The changes do not guarantee that the new assumptions and the new statutes are rational, or void of religious significance.

The State of Colorado's pose of neutrality among clashing interpretations of human sexuality cannot, to put it bluntly, pass the laugh test.  The hostility now well embedded in Colorado's political culture may perhaps be a reflection of the reverse hostilities to be found there five decades ago.  Hostility it is, quite palpably, nonetheless.  In taking up a new and different sexual ethos, a new society is propounding a new interpretation of human nature.  This is fundamental change.  Expecting everyone to happily accept it is naïve, as is predicting where it will lead.

Will the Masterpiece Cakeshop case alert the Supreme Court to some of the complications inherent in its most daring initiatives?  Might the justices decide to back off?  Might they see the appeal of de-escalating today's cultural and religious struggles by letting them be sorted and filtered through the elective branches of fifty quite various local jurisdictions – as the Constitution, not incidentally, prescribes?

Or will they persist with the "My way or the highway!" approach, which has characterized too many of their twentieth- and twenty-first-century rulings?